Assafa Endeshaw

Intellectual Property Enforcement in Asia: A Reality Check

In recent decades, Asian nations have raced against each other in enacting the latest intellectual property (IP) laws borrowed from the West on the assumption that the laws would function in the same manner as those in the West. However, the Asian nations` dismal record of implementation of IP laws has become apparent and turned into a source of dispute with their trading partners, chiefly the US, the European Union (EU) and Japan. The fundamental reason for the impasse in enforcement of IP in Asia, as elsewhere in the non-industrial world, lies in the huge economic and technological gap between them and those of the industrial nations. Historically, the need for international protection of IP grew out of the desire of a few West European states in the early 19 century to stop imitations of creative products of their citizens beyond national borders. The first form of such protection was therefore an attempt to suppress, within national borders, illegitimate products affecting businesses operating beyond those borders. The major concern of countries that became parties to IP treaties (whether bilateral, earlier on, or multilateral, from the 1880s onwards) was not however about providing the same level of protection among treaty-members but extending any available measure or form of protection to non-nationals. The recognition and extent of international protection ultimately hinged on the assimilation of non-national goods to those produced within the national borders. th The forms and scope of international IP protection changed dramatically with the introduction of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). What TRIPs did was to provide a level of cross-border protection that may or may not have been existing previously within the national setting. In other words, TRIPs substituted a structure and mode of protection that never considered the necessity of linking with or extending national IP forms and scopes as a pre-condition. In short, TRIPs became instrumental in planting a veritable disconnect between the IP laws of non-industrial countries (Non-ICs) and their social and economic conditions. It did not proceed from the nation-state`s willingness or determination to have forms of protection adequate for its needs (with the discretion of not introducing any if it did not deem such to be necessary) but regardless of such needs. The pressure on Non-ICs to legislate on a par with the major industrial nations (disguised as compliance with TRIPs requirements), lest they be treated as outlaws and pirates or the like, burdened them with an obligation unheard of in international law-that nations must be willing to take on board legal standards and measures even if the latter might be detrimental to their own domestic interests. The obligation to adopt standards and measures consonant with the requirements of the major industrial states but not necessarily with those of the Non-ICs was not only a major blow to the pursuit of development in Non-ICs but also a deadweight they have to carry forever. The circumstances in which most non-industrial nations were forced to forego their domestic interests and accede to treaty obligations without being given corresponding minimal benefits deserving of sovereign contracting parties lies at the bottom of the disconnect in the protection of IP internationally. The denial of the prerogative of non-industrial nations as purportedly full sovereigns in international law to demand or foster mutually beneficial arrangements in IP protection has generated the disconnect and fuelled the continuity of so-called piracy across the non-industrial world. This paper attempts to examine whether and how Asian nations have succeeded in managing the disconnect. It starts, in section 1, with a survey of the common misperceptions about the role of IP. Section 2 then attempts a brief appraisal of the conflicting interests and forces that condition the level, or lack, of IP lawmaking and enforcement in Asia. Section 3 briefly looks at the external pressure on Asian Non-ICs in both IP lawmaking and enforcement. Section 4 traces the signs of change in IP enforcement in Asia. The paper concludes that, despite some emerging signs of change in attitudes and levels of IP enforcement, the very same issues will remain at the forefront of IP in Asia and as a major source of dispute with the US and, to a lesser extent, the EU and Japan. It stresses that progress will continue to elude all parties, whether Asian or foreign.

The proper Law for Electronic Commerce

Abstract This article discusses the comparative merits of known alternatives in governing E‐commerce. First it deals with the reactive or speculative approach that tries to keep track of changes in technology by modifying the law piecemeal and attempting to fill gaps as soon as they appear. The discussion is restricted to issues relating to E‐commerce, namely the making of contracts, the forms of proving and enforcing them. Secondly, it examines the appropriateness of learning from the old law merchant and devising an international treaty for E‐commerce. It expresses the dilemma that E‐commerce poses as being to wait for enough customary practice to emerge before working out a treaty or developing a treaty that might be swept away by the speed of changes. The article concludes that while, for the moment at least, none of the alternatives might be more appropriate than the rest to the rapid growth of E‐commerce, treaties will inevitably become the dominant forms. The making of a treaty appears to be the on...

Regulating the Internet: clutching at a straw?

The Internet has created intricate problems for the law. Established standards comfortable with traditional means of communication (print, common carriers and broadcasting) have been shaken or made redundant. This paper seeks to highlight the major changes the law has undergone and may continue to do so in the future. It focuses on the striving of the major industrial countries to regulate the Internet as a whole and to address issues of privacy and intellectual property. It concludes by pointing out the inherent limitations of national solutions to problems raised by the Internet and the appropriateness of international arrangements.

The Singapore e‐commerce ‘code’

Abstract It has become accepted that the legal regime for commercial transactions in Singapore, which has been in place for over a century now, cannot be fully applied to the new forms of activities (in particular, electronic commerce) generated by the Internet. This article hence examines Singapores evolving responses to the legal problems posed by the emerging e‐commerce. Section 1 reviews the general framework for e‐commerce in Singapore. Section 2 then appraises the main legal instrument introduced only a year ago, namely the Electronic Transactions Act 1998 (No. 25 of 1998). The conclusion rounds off the discussion by outlining the unfinished tasks left for future resolution such as the proper law governing e‐commerce, jurisdiction and dispute resolution.

Computer misuse law in Singapore

Abstract Adapted from the UKs Computer Misuse Act 1990 from which it borrowed three types of offences (mere unauthorized access, access with ulterior motive and modification of the contents of a computer), the Singapore Computer Misuse Act 1993 (CMA) boasted innovative features of its own: intercepting a computer service, abetting of offence, the making of a compensation order against the wrongdoer, and, until recently, admissibility of evidence. The CMA has been tested in the courts with increasing regularity. This Article seeks to review the impact of that law. Section 1 presents the conceptual basis of the law with a view to throwing light on some of the inconsistencies and difficulties unveiled in practice. Section 2 summarises the scope of CMA. Section 3 examines the recent amendments to the law. Section 4 then traces developments in the application of the CMA. The Conclusion summarises the experiences in Singapore in combating computer misuse and the attempt to modernise the law for that purpose. I...

Admissibility of evidence and jurisdiction relating to online fraud

Abstract This article reviews the development of English Criminal law relating to the admissibility of computer evidence and jurisdiction in the light of the recent affirmation by the House of Lords of the earlier decision of the Court of Appeal in Regina v Governor of Brixton Prison and Another, ex parte Levin.

E-COMMERCE REGULATION — INDONESIA: Regulating E-Commerce in Indonesia: Lessons from ASEAN and Beyondx1

Abstract In spite of the 1997 financial crises and consequent meltdown of their economies, countries belonging to the Association of South-East Asian Nations (ASEAN) 2 continue to forge ahead in building or extending their information and communications technology (ICT) infrastructure. The rise of Internet based businesses has also been documented. 3 However not all nations in South-East Asia have responded to the legal problems that such businesses have begun to face.

DOMAIN NAMES: WIPO’S PROPOSALS FOR THE RESOLUTION OF DOMAIN NAME DISPUTES

Abstract This article looks at recent developments in the administration of domain names and in particular current WIPO proposals for the resolution of domain name disputes. It concludes that the emerging administrative regime falls short of what is needed to place domain names on a par with trademarks and that nothing short of a comprehensive international treaty is required if future problems are to be overcome.

Commercial law: Assimilating software to ‘goods’ by analogy

Assafa Endeshaw discusses the fresh impetus given to the unresolved issue of whether a contract for the supply of software can be regarded as a contract for ‘services’ or ‘goods’ by the July 1996 decision of the Court of Appeal in St Albans City and District Council v International Computers Ltd.