This is a summary of the just concluded course I attended which was organized by the Nigerian Institute of Advanced Legal Studies (NIALS) in Abuja.
The course was quite insightful and it examined pungent cases, laws and contemporary development in ICT and Law with a view to settle questions of doubtful laws and cases that are peculiarly instructive.
Here are some of the points I noted:
(A) ADDRESSING JURISDICTIONAL AND REGULATORY ISSUES IN INTERNET TRANSACTIONS:
It is trite that Commercial transactions, domestically or internationally are generally regulated by the law of contract, sale of goods and other consumer protection laws Municipal laws regulate domestic contracts while treaties and rules regulate international contracts.
In the case of international trade, the 1980 Convention on Contracts for the International Sale of Goods has played a major role especially in countries that are parties to the Convention.
What then is internet transaction? The scope of electronic commerce, otherwise known as e-commerce is wide and has been defined to include “commercial transactions conducted electronically on the internet. The buying and selling of information, products and services via computer networks which make up the internet.
There are some benefits of internet transactions which include the following:
- Expanded Geographical Reach
- Expanded Customer Base
- Increase Visibility through Search Engine Marketing
- Provide Customers valuable information about your business
- Available 24/7/365 – Never Close
- Build Customer Loyalty
- Reduction of Marketing and Advertising Costs
- Collection of Customer Data
It is a generally known fact that whatever has benefits also comes with its challenges, below are some challenges of Internet Transactions pointed out:
- The internet is a cross-border medium for inter-state and transnational transactions
- Creates challenges for courts in determining jurisdiction, conflict of laws and choice of law
Emerging procedural issues have arisen regarding:
- Personal jurisdiction – power of court to preside over a defendant – non-residents in a country? Example: Macquarie Bank Ltd v Berg
- Parties’ choice of law and forum – jurisdiction and applicable law- Sonnar & Anor. v. Partnenreedri M.S Nordwind & Anor
- Conflicts of law – principles used to determine applicable law
In the case of signature the Model Law, Article 7 provides that where the law requires a signature of a person, that requirement is met in relation to a data message if:
- A method is used to identify that person and to indicate that person’s approval of the information contained in the data massage; and
- That method is as reliable as was appropriate for the purpose for which the data message was generated and communicated, in the light of all the circumstances, including any relevant agreement.
- Intellectual property and tort of defamation creates peculiar problems.
- In a national system, the law of contract is regulated by municipal laws.
- However, electronic transactions are regulated by three main regimes – self-regulation, municipal laws and international laws.
- No transnational internet court has evolved to resolve cross-border conflicts of law in cyberspace
- Traditional conflicts of law principles still apply
- In the case of contracts, the most significant relationship test – the connecting factors – is applied – place of contracting, place of negotiation, place of performance, location of the subject matter, domicile, residence, nationality, place of incorporation and place of business of the parties
- In the case of torts – places where the injury occurred or places where conduct causing injury incurred or domicile, residence, nationality, place of incorporation and place of business of parties or place where relationship between parties is centred.
(B) INTELLECTUAL PROPERTY RIGHT IN THE ONLINE ENVIRONMENT.
The Primary Source of Legal protection in the digital environment is intellectual property law.
It is pertinent to know what intellectual property means, intellectual property (IP) refers to creations of the intellect for which a monopoly is assigned to designated owners by law. It is also, the rights granted to the creators of Intellectual properties, and these include trademarks, copyright, patent, industrial designs rights, and in some jurisdictions, trade secret.
As our world is transformed by the revolution in information technology, the rate of intellectual theft and crimes has increased and this poses as a threat to patent owners.
Like any other property right, intellectual property rights allows creators, or owners of patents, trademarks or copy righted works benefit from their own work or investment in a creation. And these rights are outlined in Article 27 of the Universal declaration of Human Rights.
One question one may ask is why do we protect intellectual property? There are several compelling reasons why IP must be protected, first of all, the progress of humanity lies in its capacity to create and invent new works in the area of technology, also the promotion and protection of intellectual properties encourages economic growth and enhances the quality and enjoyment of life.
The protection of Intellectual Property provides an environment in which the creativity and invention can blossom, for the benefit of all.
- The Economy of the future will be based on relationship rather than possession. It will be continuous rather than sequential…in the years to come, most human exchange will be virtual rather than physical’
- Intellectual property concerns
- Privacy (Persons)
- Security (System)
- Intellectual property rights – Protect economic Value of the works, provide for all known forms of exploitation of rights, guard against infringement.
- How is Intellectual property Right protected by the cybercrime Act?
- Is it the remit of cybercrime law to protect Intellectual property Right?
Other topics beneficially discussed are;
1) Electronic case management systems (for lawyers and court)
2) ICT litigation, digital evidence and computer forensics
3) Practical guides in drafting and negotiating software licensing and development agreements
4) Cyber rights (Expression, privacy and property) Infringement of laws on the internet
5) Fundamentals of ICT laws and regulatory framework for E-governance.
The conference in extension examined the emerging frontiers in ICT, the rights of expression, privacy and property in the light of the advances of information technology and the global generation.
– Moses Oruaze Dickson
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