Technology & Law
|A Comparative Study of Cybercrime in Criminal Law|
The development of information technology provides new opportunities for crimes. Firstly, it facilitates traditional crimes such as fraud, and secondly, it breeds new crimes such as hacking. The traditional crimes facilitated by information technology and the new crimes bred by it are the so-called cybercrime in this book. To regulate cybercrime, legal regimes have developed countermeasures in the field of criminal law at different levels. At the national level, China, the United States, England and Singapore have all undergone reforms to adapt their criminal law. At the international level, the Council of Europe has drafted the Convention on Cybercrime and opened it for signatures. However, the still commonly committed cybercrime, such as DDoS attacks and online fraud, indicates the insufficiency of these countermeasures. In this background, this book intends to answer the research question: how can the criminal law be adapted to regulate cybercrime? By using doctrinal research and comparative study as the main methods, this book firstly explores and analyses the approaches of cybercrime legislations in the selected five legal regimes both in the past and in the present, and secondly, compares the different approaches and concludes with respect to the following aspects: Aspect 1: Do we need a cyber-specific legislation to regulate cybercrime? Aspect 2: If we do need a specific legislation, what approaches are more systematic for it? Aspect 3: What principles are sufficient and appropriate to determine jurisdiction over cybercrime? Aspect 4: What is the function of the Convention on Cybercrime in shaping appropriate legislation against cybercrime?
| Digital Evidence Changing the Paradigm of Human Rights Protection|
Salvatore di Cerbo
In a “digital world” like ours, vast Information and Communication Technology (ICT)
infrastructures are highways where run extensive flows of information, dictating the
rhythm of our day-to-day lives. Such a deep influence, close to be an addiction for us, turns
ICT an unquestioned feature of modern life. These premises well portrait the landscape in which the diverse spectrum of actors
committed to promote, defend and restore the human rights operate. Therefore, the risk is
to mistake the means with the ends; but, even if the subject of this work, Digital Evidence,
is technology-related, the purpose of the study is the goal to which it tends: human rights
and their protection. Moreover, the wide diffusion of “capturing devices” that allow the documentation of human
rights abuses throughout massive streams of data from diverse sources will raise new
needs: in primis a careful collection and interpretation of the most relevant ones, and then
the establishment of mechanisms to ensure the validity and reliability of newly acquired
information. The whole chain that connects all the required steps in order to turn digital data into
“digital legal evidence” relevant for the protection of human rights, represents a challenge
for human rights practitioners, as individual activists, as well as organizations. Every single
step is fundamental: collection, management, preservation, analysis and security of data,
along with an effective communication and strategic use of evidence. Twitter tweets, Facebook and Blogs posts, Instagram photos and Youtube videos, even
when considered too weak for a conviction to be founded on, can play an important
role outside of a courtroom, establishing the grounds for prosecution indictments or, in
general, creating awareness of human rights abuses. Consequently, new forms of human rights activism, like the so-called “hashtag activism”,
pass through social media and have the power to generate a real change at both legal and
awareness level. The risk to be avoided is to mortify this power using social media as a
shortcut to be politically active or socially trendy making a mere “clictivism”. Hence, the core of this work revolves around the pivotal question of legal sufficiency of
the digital means employed in recording human rights abuses and the consolidation of
standards and procedures regulating the admissibility of collected evidence in the court of
law. The purpose is to provide an answer from a tri-folded point of view. The U.S. legal system leads in the regulation of the requirements for digital evidence to be
admitted at trial; nonetheless, also International courts like ICC, ICTY and ICTR follow
rules and procedure for that purpose, based on authenticity, protection of privacy, chain
of possession and reliability of the electronic evidence. At the European level, instead, the
lack of a common legislation relevant to the admissibility of d-evidence at trial required a
comparative study of the respective provisions contained in many Europeans countries’
procedural law. For these three levels a special attention is reserved to the analysis
of the lifecycle of digital evidence, from the creation and use of digital digital human
rights documentation for immediate purpose to its later admission as evidence in legal
proceedings, as well as to the authentication issue. At the last stage a collection of the most relevant case law form the principal U.S. courts
and International courts is provided.
|Trust on the line|
Governments, companies, and citizens all think trust is important. Especially today, in the networked era, where we make use of all sorts of e-services and increasingly interact and buy online, trust has become a necessary condition for society to thrive. But what do we mean when we talk about trust and how does the rise of the Internet transform the functioning of trust? This books starts off with a thorough conceptual analysis of trust, drawing on insights from -amongst othersphilosophy and sociology to sharpen our understanding of the topic. The book explains how the arrival of large systems – such as the internet- has changed the character of trust which today is no longer based on interpersonal interactions but has become completely mediated by technologies. Based on the layered building plan of the Internet itself, a new conceptual lens called 4 Cs is developed to analyse and understand trust in the networked era. The 4Cs refer to the 4 layers which all have to be taken into account to assess trust online, namely: context,code, codification, and curation. The 4cs bring together the firsthand experiences of the user (context), the sort of technology that is being used (code), the legal implication (codification) and business interests (curation) in order to get a clear picture of the trust issues that may arise. In the final part of the book some real-life cases are discussed (digital hotel keys, Airbnb, online personalization) to illustrate how trust –analysed through the 4 Cs lens- might flourish or be challenged in our current networked era.
|Profiling Technologies in Practice|
This volume presents the findings of some interesting research into profiling. The aim of the research has been to identify and tackle the challenges posed by profiling technologies to fundamental rights. The focus is on data protection, and the context is that of the European Union.
This volume testifies to the increased awareness of the far-reaching implications of profiling, notably with regard to democracy and the rule of law. Profiling confronts traditional understandings of fundamental rights with a new environment that is progressively contingent on data-driven applications and infrastructures. Profiling nourishes the advance of smart grids, smart cars and traffic management, remote e-health, personalized advertising and search engines, as well as data-driven fraud detection, policing, criminal justice and foreign intelligence.
Mireille Hildebrandt, co-editor of “Profiling the European Citizen”
|Digital Rights Management Systems vs. users´ privacy|
At the time of their introduction, Digital Rights Management systems were often triumphantly presented as the decisive technological response to digital piracy. However, shortly after their introduction it became clear that this technological protection presents a rather small, but costly speed bump on the digital highway leading to the protected content, and not a panacea for this undesirable phenomenon. As a result, Digital Rights Management systems have undergone crucial transformation. With their further development, the Digital Rights Management systems ceased to focus solely on combating piracy and started to collect vast amounts of information about the users and content usage for various purposes. This book describes the crucial stages of this process, evaluates the extent of the threat to the privacy of users’ using protected content and assesses both - legality and legitimacy of the current use of Digital Rights Management systems. Although this book emphasizes privacy and data protection legislation in the European Union and Digital Rights Management systems usage interrelation, it also offers non-legal insight by adding social and economical views on the development in the field.
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|Made in Africa|
An ICT revolution is underway in Africa. New possibilities have been created by the landing of international broadband sea cables on African shores and by the rapid spread of mobile telephony all over the continent. As a result, there are many startup ICT businesses trying to create new and inventive products and services, based upon internationally available technology but tailored to African markets and needs. However, little
empirical research has yet been done regarding role that law plays in the absorption of technological knowledge in this particular sector and context.
In this study, empirical data from case studies in Zambia, Kenya and Ghana is compared to what has been assumed in literature to be the role of law in absorptive capacity. The results of this
study provide insight in the actual role that law has played for startup ICT businesses, which may have significant policy implications for national governments and regulators in developing countries that seek to promote their ICT sector.
|The impact of Business Process Outsourcing on privacy and data protection - a thorough risk analysis|
At present, a company, either small/medium enterprise or huge corporation, develops its activities within a competitive environment where solely the perspicacious one could gain a profit and hold or improve its positions on the market. Therefore, “firms increasingly buy all or at least parts of selected services they need from external service providers. This is especially true for services which rely to a great extent on new information and communication technologies and they carry out that task by means of outsourcing. The aim of the present research is to examine how a premature termination of a business process outsourcing project (hereafter BPO) might infringe upon several major provisions of the current EU data protection framework. Such a question is relevant because of the technological means inherent in a BPO through which personal data are being processed, and of the great possibility for unlawful data processing after a premature termination of the project. Therefore, a BPO falls under the scope of regulation by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Ultimately, as the research will show, the DPD 95/46/EC as a legal instrument devoted to protect the right to personal data protection turns to be unable to provide sufficient protection on the data subjects’ rights in the context of prematurely terminated BPO contract. Therefore, the Proposed Data Protection Regulation represents an instrument that could deal properly with the said issue, especially if some proposals for amendments made within the present paper be taken into account.
|Verkeersgegevens en artikel 13 Grondwet|
Bert-Jaap Koops en Jan Smits, mmv Frank van der Kroon
Nu de telegraaf is verdwenen en het Internet is ingeburgerd, wil de wetgever artikel 13 van de Grondwet – het brief-, telefoon- en telegraafgeheim – vervangen door een brief- en telecommunicatiegeheim. Momenteel beschermt artikel 13 Grondwet alleen de inhoud van communicatie, en niet verkeersgegevens, dat wil zeggen gegevens zoals wie met wie wanneer belt of mailt. Maar hoe baken je verkeersgegevens af van inhoud van communicatie? Sommige verkeersgegevens zijn tegelijk inhoud, zoals de onderwerpsregel van een emailbericht, en vaak geven verkeersgegevens, zoals Internetadressen, informatienummers en locatiegegevens, zicht op de inhoud van communicatie.
En naast het conceptuele onderscheid is er ook een technische uitdaging: kun je in de dynamische Internetcontext, waarin doorlopend nieuwe protocollen verschijnen, verkeersgegevens wel steeds technisch scheiden van de inhoud van communicatie?
Dit boek, dat geschreven is in opdracht van het ministerie van Binnenlandse Zaken en Koninkrijksrelaties in het kader van de herziening van artikel 13 Grondwet, geeft antwoord op de vraag in hoeverre het mogelijk is om verkeersgegevens en inhoud van communicatie nu en in de nabije toekomst voldoende scherp af te bakenen, zowel in technische als in juridische zin. Het biedt een integrale reflectie op het onderscheid tussen verkeersgegevens en communicatie-inhoud in een sterk aan veranderingen onderhevig communicatielandschap. De visie die hierin wordt gepresenteerd op de betekenis en de (on)houdbaarheid van het onderscheid tussen verkeersgegevens en inhoud is niet alleen van belang voor de herziening van artikel 13 Grondwet, maar ook voor de verdere ontwikkeling van het straf(proces)recht en het bestuursrecht rond elektronische communicatie in de toekomst.
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|Intellectual Property and Human Rights: is a Balance Possible? |
The intellectual property regime influences almost every sphere of economic life, having a significant impact on the protection and promotion of human rights. This succinct introduction gives a brief view of the long-standing issue concerning an intellectual property definition, as well as of its historical origins and evolutions, and of its fundamental fields of protection. The author provides a view on the relationship between intellectual property and human rigths that have for long been treated in virtual isolation from each other and investigates the fundamental international and regional provisions that have created an intersection between human rights law and intellectual property regimes. The book also includes the most relevant legal instruments on Intellectual Property and Human Rights.
|Bridging distances in technology and regulation|
Ronald Leenes, Eleni Kosta (eds).
Information and Communication Technologies allow us to bridge space and time. New services and industries are constatnly being created and people no longer depend on the here and now for their development, but can tap into resources across the globe.
Cloud Computing, for instance, allows users to make use of remote services and store their data far from home. Healthcare increasingly makes use of diagnosis and care at a distance. Drones and remote cameras replace the physical presence of police and other vigilantes. Robots will increasingly be deployed to act on our behalf.
The mediation in space and time by technology also raises new questions. How will distance work out in daily life, in work, in friendships, and in care? How will people adjust tot he paradoxical distance and closeness created by technologies? Will the distribution of responsibilities and liability change if activities take place at distances in space and time in complex systems and global environments? What are best practices in multi-level governance to address the rise of distant interconnectivity?
This book, resulting from a conference in Spring 2013 at Tilburg University, brings together a collection of papers addressing the questions raised above.
|Digital Personae and Profiles in Law|
Every individual is represented in digital form in numerous data sets. Commercial companies use these digital representations as a basis for making decisions that affect the individual. This has implications for privacy and autonomy of the individual and the ability to construct one’s own identity. This study describes how digital representations are created and for what purposes. An analysis is made of the implications this has for individuals and why privacy, autonomy, and identity construction are at stake. In this context legal protection of individuals is provided by data protection legislation. The current framework, however, appears to be insufficient in relation to the problems identified in this study. Other legal constructs are assessed to see whether alternative approaches could help offer legal protection. Finally, a proposal is presented to embed the concepts of digital personae and profiles (as forms of digital representations) as portraits in data protection law.
Arnold Roosendaal studied Dutch Law and obtained an LLM in Law and Technology. After his LLM, he followed a Research Master Programme, for which he obtained his MPhil. Arnold completed this PhD thesis at the Tilburg Institute for Law, Technology, and Society (TILT), Tilburg University, The Netherlands. Currently, he works at TNO, the Netherlands Organisation for Applied Scientific Research. In addition he is partner at Fennell Roosendaal Onderzoek en Advies. He has a great interest in law and technology and the implications of technological developments on society. Arnold has participated in several international research projects, such as FIDIS, PrimeLife, and PRISMS and has written several international publications. He regularly participates in conferences as a speaker or panelist.
|The Technology Criterion in Patent Law|
Reinier B. Bakels
Patenting allegedly non-technical subject-matter like software and business methods is controversial both from a political and a legal perspective. Political opinions about patents in these fields vary from "indispensable" to "disastrous". Lawyers complain about opaque rules that would violate statutes.
US law allows patents on non-technical subject-matter, but it excludes "abstract ideas", an exclusion that leads to remarkably similar controversies, again both at the political and the legal level.
Coincidentally, in 2010 both the Enlarged Board of Appeal of the European Patent Office and the U.S. Supreme Court addressed these problems, but unfortunately both failed to provide the clarification one had hoped for.
This book gives a unique explanation why patents logically should only be granted for technology, and how the technology concept should be interpreted in order to solve today’s controversies, both at the legal and the policy level.
Uchenna Jerome Orji
This book is an attempt to discuss the legal and regulatory aspects of cybersecurity. The book examines international, regional and national regulatory responses to cybersecurity. It particularly examines the response of the United Nations and several international organizations to cybersecurity. It provides an analysis of the Council of Europe Convention on Cybercrime, the Commonwealth Model Law on Computer and Computer Related Crime, the Draft International Convention to Enhance Protection from Cybercrime and Terrorism and the Draft Code on Peace and Security in Cyberspace. The book further examines policy and regulatory responses to cybersecurity in the United States, the United Kingdom, Singapore, India, China and Russia. It also examines the African Union’s regulatory response to cybersecurity and renders an analysis of the Draft African Union Convention on the Establishment of a Credible Legal Framework for Cybersecurity in Africa. It considers the development of cybersecurity initiatives by the Economic Community of West African States, the Southern African Development Community and the East African Community. The book further provides an analysis of national responses to cybersecurity in South Africa, Botswana, Mauritius, Senegal, Kenya, Ghana and Nigeria. It also examines efforts to develop policy and regulatory frameworks for cybersecurity in sixteen other African countries (Algeria, Angola, Cameroon, Egypt, Ethiopia, Gambia Lesotho, Morocco, Namibia, Niger, Seychelles, Swaziland, Tanzania, Tunisia, Uganda and Zambia). Nigeria is used as a case study to examine the peculiar causes of cyber-insecurity and the challenges that hinder the regulation of cybersecurity in African states as well as the implications of poor cybersecurity governance on national security, economic development, international relations, human security and human rights. The book suggests several policy and regulatory strategies to enhance cybersecurity in Africa and the global information society with emphasis on the collective responsibility of all states in preventing trans-boundary cyber harm and promoting global cybersecurity. This book will be useful to policy makers, regulators, researchers, lawyers, IT professionals, law students and any person interested in seeking a general understanding of cybersecurity governance in developed and developing countries.
About the Author
Uchenna Jerome Orji is a Barrister and Solicitor of the Supreme Court of Nigeria. He holds a Bachelor of Laws (LL.B) honours Degree from the University of Nigeria and a Masters of Laws (LL.M) Degree from the University of Ibadan, Nigeria with a research specialization in Information Technology Law. He is also a Consultant to the African Center for Cyber Law and Cybercrime Prevention (ACCP) of the United Nations, African Institute for the Prevention of Crime and the Treatment of Offenders, Kampala, Uganda.
Summary of contents with highlights and jurisdictions covered
An Introduction to Cybersecurity and Regulation
Contents of the chapter include discussions on:
§ The information revolution, the history of computers and the emergence of the information society;
§ The definitions of cybersecurity and cybercrime;
§ Telecommunications security, data protection, information security and the protection of critical infrastructures/critical information infrastructures;
§ Confidentiality, integrity, availability and accountability;
§ Critical components of cybersecurity governance - legal aspects, technical aspects, institutional/organizational aspects, computer emergency response teams (CERTs), End-user education, research and development;
§ Unauthorized access (Hacking), unauthorized interception, data interference, system interference, data espionage, child pornography, cyber xenophobism, spam mails, misuse of computing devices, identity theft, cyber-squatting, web hijacking, copyright infringements, computer related forgery, computer fraud, and the liability of Internet Service Providers;
§ Cyber Terrorism, Cyber Warfare, Cyber Arms Control and Cyber Deterrence; and;
§ The implications of cybersecurity to national security, economic security, human rights and human security.
International Responses and Legal Measures on Cybersecurity
The chapter discusses the responses of international and multilateral organizations to cybersecurity including:
§ United Nations resolutions on cybersecurity;
§ The International Telecommunications Union (ITU);
§ The World Summit on the Information Society (WSIS);
§ The ITU High Level Expert Group (HLEG) on Cybersecurity;
§ The Group of Eight (G8);
§ The Interpol;
§ The Council of Europe;
§ European Union (EU);
§ The Asian Pacific Economic Cooperation (APEC);
§ The Organization for Economic Cooperation and Development (OECD);
§ The Commonwealth;
§ The Organization of American States (OAS);
§ The Association of South-East Asian Relations (ASEAN);
§ The North Atlantic Treaty Organization (NATO);
§ The Arab League and Gulf Cooperation Council;
§ The Stanford Proposal;
§ The Global Protocol on Cybersecurity and Cybercrime;
§ The International Multilateral Partnership Against Cyber Threats (IMPACT);
§ An analysis of the Council of Europe Convention on Cybercrime;
§ An analysis of the Commonwealth Model Law on Computer and Computer Related Crime;
§ An analysis of the Draft International Convention to Enhance Protection from Cybercrime and Terrorism;
§ An analysis of the Draft Code on Peace and Security in Cyberspace; and;
§ The limitations of international responses and legal measures on cybersecurity.
National Regulatory Responses to Cybersecurity in Select Jurisdictions
The chapter examines regulatory and policy frameworks for cybersecurity in the following countries:
§ The United States of America
The Computer Fraud and Abuse Act
The CAN – SPAM Act
The Digital Millennium Copyright Act
The Economic Espionage Act
The Electronic Communications Privacy Act
The Wire Fraud Act
The United States PATRIOT Act
The Federal Information Security Management Act
The Cyber Security Research and Development Act
The Department of Homeland Security
The United States Computer Emergency Readiness Tem
The National Strategy to Secure Cyberspace
The Comprehensive National Cybersecurity Initiative
The Cyberspace Policy Review
The United States International Strategy for Cyberspace
The United States International Cybercrime Reporting and Cooperation Bill
§ The United Kingdom
The Computer Misuse Act
The Terrorism Act
The Counter-Terrorism Act
The Regulation of Investigatory Powers Act
The Fraud Act
The Police and Justice Act
The Serious and Organized Crime Agency (SOCA)
The Communications Electronics Security Group (CESG)
The UK Computer Emergency Response Team (GovCertUK )
The Center for the Protection of National Infrastructure (CPNI)
The Office of Cyber Security
The Cyber Security Operations Centre
The Internet Watch Foundation (IWF)
The Cyber Security Strategy of the United Kingdom
The Computer Misuse Act of Singapore
The Spam Control Act of Singapore
The Infocomm Security Master Plan 2
The National Trust Framework (NTF)
The Indian Information Technology Act
The Information Technology (Guidelines for Cyber Cafe) Rules 2011
The Department of Information Technology
The Indian Computer Emergency Response Team
The National Nodal Agency
The Indian Cybersecurity Strategy
§ The People’s Republic of China
The Computer Information Network and Internet Security, Protection and Management Regulations
The Chinese Regulations on Safeguarding Computer Information Systems
The State Secrecy Protection Regulations for Computer Information Systems on the Internet
The Criminal Law of the People’s Republic of China
China’s National Defense Strategy 2010
§ The Russian Federation
The Criminal Code of the Russian Federation
The Law of the Russian Federation on the Legal Protection of Computer Programmes and
The Russian Information Security Doctrine
Russia and the Council of Europe Convention on Cybercrime
§ The chapter also analyses some major regulatory challenges to cybersecurity in both developed and developing countries
Multilateral Regulatory Responses to Cybersecurity in Africa
The chapter discusses multilateral regulatory responses to cybersecurity in Africa including:
§ The African Union (AU)
§ An analysis of the Draft African Union Convention on the Establishment of a Credible Legal Framework for Cybersecurity in Africa and some perceived problems of the Draft Convention
§ The Economic Community of West African States (ECOWAS)
§ The Southern African Development Community (SADC)
§ The East African Community (EAC)
Cases Studies of National Regulatory Responses to Cybersecurity in African States
The chapter examines regulatory and policy responses to cybersecurity in the following African countries:
The Algerian Cybercrime Act 2008
The Basic Telecommunications Law 2001
The Cybercrime and Computer Related Crimes Act 2007
The Cybercrime Act 2011
The E-Signature Law 2004
The Criminal Code of the Federal Republic of Ethiopia 2004
The Information and Communications Act 2009
The Electronic Transactions Act 2008
The National Information Technology Agency Act 2008
The Communications (Amendment) Act 2009
The Information and Communications Technology Policy
The ICT Policy 2005
The Computer Misuse and Cybercrime Act 2003
The Penal Code 2003
The Computer Misuse and Cybercrime Act 2003
The Cybercrime Law 2003
The Law on Cybercrime 2008
The Computer Misuse Act 1998
The Data Protection (Amendment) Act 2003
§ South Africa
The Electronic Communications and Transactions Act 2002
The Interception and Monitoring Prohibition Act 1992
The Draft Cybersecurity Policy of South Africa 2010
§ Kingdom of Swaziland
Kingdom of Swaziland National Information and Communication Infrastructure (NICI) Policy 2003
National Information and Communications Technology Policy 2003
The Cybercrime Act 1999
The Computer Misuse Bill
The Computer Misuse and Crimes Act 2004
Cybersecurity Law and Regulation in Nigeria
The chapter examines regulatory and policy responses to cybersecurity in Nigeria, including analysis and discussions of the following:
§ The Advance Fee Fraud and other Fraud Related Offences Act;
§ The Nigerian Communications Act;
§ The Nigerian National Policy for Information Technology;
§ The Presidential Committee on 419 Activities in the Cyberspace;
§ The Nigerian Cybercrime Working Group;
§ The Directorate for Cybersecurity;
§ The Economic and Financial Crimes Commission (EFCC);
§ The National Information Technology Development Agency;
§ The Computer Security and Critical Information Infrastructure Protection Bill;
§ The Nigerian Cybersecurity and Data Protection Agency Bill;
§ The peculiar causes of cyber-insecurity and the regulatory challenges of cybersecurity in
§ The implications of cyber(in)security on national security, human security, human rights, international relations and economic development in Nigeria.
Policy and Regulatory Proposals to Enhance Cybersecurity
The chapter includes highlights and discussions of the following:
§ A summary of national regulatory responses to cybersecurity in African countries;
§ Policy and regulatory proposals to enhance cybersecurity in Africa countries;
§ Policy and regulatory proposals to enhance global cybersecurity; and
§ Proposals towards enhancing the collective responsibility of states for global cybersecurity
|Cross-retaliation in IP rights: addressing member asymmetries and compliance at the WTO |
As the multilateral trade relations multiply and become more sophisticated, trade disputes governed by the WTO also tend to become more frequent. In fact, since 1995 there was a significant increase in disputes brought before the WTO, compared to the number of disputes discussed before GATT. The large number of controversies not only indicates that there are disagreements among members about the inconsistency of trade measures, but also that the establishment of a rules engine resulted in a more secure and comfortable environment to solve disputes. The dispute settlement system provides stability to the multilateral trade and reflects the credibility of its members to solve disputes under a system of legalized and predictable solution. However, although the system appears to be very effective - especially due to the high rate of compliance with WTO decisions, there are gaps and inconsistencies that should not be overlooked. This research focuses on the phase of implementation of decisions adopted by the DSB. This is the stage when the economic asymmetries are emphasized, since the greater or lesser importance of access to certain market seems to be crucial to the decision to comply with a WTO ruling. In fact, if one loser developed member in a dispute against a developing country member prefer to pay the price of failure rather than comply with the decision, there seems to be no effective way to induce compliance. Considering this scenario, the present study is interested in the solutions given by the DSU in dealing with compliance issues and implementing decisions in accordance with its provisions. In particular, this study focuses on the cross-retaliation in IP rights, a mechanism that is appointed by the academy and by professionals as a possible solution to the economic asymmetries between opponents in a trade dispute. Even though it seems to be a very interesting solution for developing country members, this dissertation concluded that cross-retaliation in IP rights can function in very specific situations, depending on the domestic market size, domestic legislation, international commitments and political pressure.
Joost Kuhlmann, Freek Rijna
Terug naar de Werkelijkheid
De ontologie van virtuele werelden en het recht
Ze zijn ontastbaar, imaginair, gesimuleerd en kunstmatig. Maar als je virtuele objecten steelt, kun je toch veroordeeld worden wegens diefstal. Het blijkt uit de RuneScape-zaak waarin de rechter twee jongens veroordeelde voor het ontvreemden van een virtueel zwaard en masker. Maar is het niet vreemd dat je iets kunt stelen wat alleen bestaat in de fantasie van een spel? Juristen schrijven er veel over, maar een strikt juridische benadering mist overtuigingskracht omdat het niet uitlegt wat een virtueel object eigenlijk is. Op basis van de ontologische theorie van John Searle onderzoekt deze scriptie de zijnswijze van entiteiten die lijken te bestaan in een virtuele omgeving. Denk aan mp3-bestanden, tekstdocumenten, software, virtueel geld en virtuele zwaarden. Zo biedt dit werk inzicht in belangrijke vragen over virtuele werelden. Wat maakt het uit dat iets onstoffelijk is? Of dat het alleen maar bestaat omdat mensen vinden dat het bestaat? Moet dat juridische consequenties hebben? Antwoorden op deze vragen maken het mogelijk om juridische vraagstukken scherp te analyseren.
Virtuele objecten: echt voor het recht? Wat de techniek de jurist leert over eigendom (andere kant van dit boek)
In de literatuur is reeds geschreven over de juridische status van virtuele objecten in virtuele werelden, zoals World of Warcraft en Entropia Universe. In deze werelden spelen duizenden mensen tegelijk via internet met en tegen elkaar. De virtuele spullen die zij daar verzamelen, zijn soms echt geld waard. De onderzoeksvraag is hoe deze objecten door het privaatrecht dienen te worden beschermd. In juridische verhandelingen wordt het virtuele object vaak gereduceerd tot enen en nullen, bits en bytes en uiteindelijk elektriciteit. De conclusie is dan - omdat de vereiste stoffelijkheid van art. 3:2 BW bij elektriciteit ontbreekt - dat niet van een zaak in de zin van art. 3:2 BW kan worden gesproken en de virtuele objecten dus niet voor bescherming door het eigendomsrecht in aanmerking komen. Wordt het virtuele object echter technisch gezien kritisch beschouwd, dan komt men tot een veel uitgebreider rechtsobject (een zgn. objectinstantie) dat zich niet laat terugbrengen tot enen en nullen. Dit correcte rechtsobject kan dan opnieuw worden getoetst aan de eisen voor stoffelijkheid. Dit leidt tot de verrassende conclusie dat virtuele objecten wel degelijk stoffelijk en voor menselijke beheersing vatbaar zijn en daarmee als zaak kwalificeren en dus ook vatbaar zijn voor het eigendomsrecht.
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|Technologies on the stand|
B. van den Berg, L. Klaming (eds.)
Neurotechnologies, such as functional Mangetich Resonance Imaging and Deep Brain Stimulation, are currently mainly used in the health sector for research, diagnosis and therapy. But neurotechnologies could also be used for human enhancement, for instance to improve cognitive functions.
Moreover, insights from neuroscience are increasingly used for legal purposes, for instance to determine a suspect`s responsibility for his actions or to distinguish truthful from deceptive statements. These three domains of applciation raise different important ethical and legal questions that require further discussion.
Similarly, the application of robotics and autonomous technologies in various (social) situations - the home, hospital environments, traffic and in war - raises a number of ethical and legal issues. These include questions such as: what are the ethical implications of applying robots in the health sector with regrad to our ideas about human dignity and autonomy?
What are the consequences of using robotics in war? And can we hold robots liable if they play an ever more important role in our daily lives?
This book, which was created in light of a conference on the topic that was held in the spring of 2011 at Tilburg University in the Netherlands, brings together 19 papers on the fascinating developments in neuroscience and robotics, and the legal, ethical and consequences these developments may have.
|Unmanned Aircraft Systems (Drones) and Law |
L. de Beer (ed.)
The character of warfare has changed over time. Indeed, developments may be so dramatical that they can be characterized as revolutionary. Technology developed new vehicles to attack enemies. In this book we will elaborate on Unmanned Aircraft System (UAS). These systems are also known as drones and UAV’s (Unmanned Aerial Vehicle). In this book will be discussed what UAS’ are and what the legal limits are of the use of those unmanned systems. This book will first zoom in on Lawful conflicts between Nations based on the United Nation charter. Second, on International Humanitarian law of war based on the first Geneva protocol. Moreover, the legality of Targeted Killing with the use of unmanned systems will be discussed. This introduction on the subject will be followed by relevant selected documents.
|Examining ex parte in rei patenti|
What is claimed:
1 A thesis concerning the research whether it should be possible to order an ex parte injunction under
2 Dutch patent laws, and if so under what conditions, compromising;
3 An explanation of what the ex parte injunction is and what requirements apply with regard to Article 1019e of the Dutch Code of Civil Procedure and Directive 2004/48/EC;
4 The interpretation by Dutch courts of those requirements in copyright, trademark right, design right and database right litigations;
5 The history of the ex parte injunction;
6 A comparison with some other European countries;
7 An overview of what requirements should apply;
8 The characteristics of patents and patent litigation;
9 Weighing the balance whether the ex parte injunction should or should not apply in patent litigation
|Framing Citizens Identities|
S. van der Hof, R.E. Leenes, S. Fennell
The image of citizens (identity) plays a key role in citizen and government relationships and identifiability is perceived relevant in many contexts of public administration. This is particularly the case where citizens can exercise rights and claim benefits, and for various purposes, like administration and registration, public safety, security, general law enforcement, policy-making, citizen mobility, and, more generally, to exercise control. Citizen identities as constructed and maintained by government are changing in the information age: they become ever richer and more complete. Information from different sources is linked together to form comprehensive accounts of individuals. Simple records pertaining to clients or citizens are increasingly enriched by other data to form more complete pictures of the individuals involved. Up to now, this mainly concerned data provided by the individuals (the data subjects) themselves, or on the interpretation or decision of the record keepers (the data controllers). More and more personal data is and will be processed from other sources, as a result of new technologies and applications, like Radio Frequency Identification, biometrics, Location-Based Services, profiling, data mining and ubiquitous computing. This trend includes the processing of relatively new kinds of personal data, such as location and behavioural data, and the identifiability of more objects and persons because of an increased use of unique identifying numbers. Additionally, personal data is stored more extensively, for example, as a result of camera surveillance, Internet use and Digital Rights Management. Moreover, data becomes increasingly accessible as a result of digitalisation, linking and automatic recognition as well as technology convergence and tracking and tracing (behaviour of) individuals from a distance. Increased personal-data intensity and sophisticated methods of analysing data, like data mining, lead to more complex identities of individuals. What these identities amount to is relatively unclear, as is their impact on policy making, execution and citizens.
This book provides a conceptual framework for ‘identity’ and other related concepts, and explores, both theoretically and empirically, how socio-technological, policy and legal developments change the construction of citizen identities and, hence, citizen and government relations.