International Protection Of E-commerce Related Intellectual Property

Since the 1990's, information technology has become a strong and useful tool in the development of new products, as well as in the improvement of process flows and operating efficiency. In tandem with the development of information technology, the application of the Internet has rapidly spread in various industries. As such, people have experienced significant changes in their daily lives. These changes, which are still ongoing at an ever increasing pace, have not only altered the conventional way information is obtained, but also resulted in the establishment of new working, learning and medical treatment environments, such as mobil offices, distance learning, and remote medical treatment. Furthermore, through the joint development of the Internet and information technology, e-commerce has ushered in a new era of business transactions, a brand-new way of conducting commercial activities relying on network and digital environments. As generally anticipated, by the 21^st century, total global turnover achieved through means of e-commerce might exceed that realized through trade taking place via more traditional means. In view of the wide range and specific nature of e-commerce which brings about revolutionary transformations in logistics, knowledge streams and currency flow, those enterprises which intend to thrive in the environment of keen e-commerce competition need to make an all-out effort to progress in the areas of marketing networks, internal organization management and external environment, including coordination with upstream suppliers and meeting the needs of downstream customers.With the global boom in the e-commerce sector, there have arisen legal and technical issues to be resolved in the intellectual property community, such as (1) how to determine the legal position of digital contracts; (2) how to verify the identify of contracting parties and the contents of digital contracts; (3) how to determine jurisdictions over disputes in the digital world; (4) which e-commerce related subject matters should be protected under the umbrella of the intellectual property system; and (5) how to ensure a secure digital business environment. Undeniably, only when a certain degree of global consent is reached in these aspects can the legal certainty and predictability of e-commerce transactions be enhanced.The interrelationship between e-commerce and intellectual property is multifold. While the intellectual property system plays a critical role in shaping the digital world, the Internet will have a profound effect on the intellectual property community. However, owing to the different levels of innovative capacity, different countries may have disparate concepts on intellectual property. This would inevitably hinder the development of e-commerce and bring about unsolvable disputes. As such, many international treaties as well as organizations, including the Patent Cooperation Treaty (PCT), European Patent Convention (EPC), World Trade Organization (WTO) , Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPs), Madrid Protocol, WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty (WPPT) , have launched a far-reaching program of activities in a bid to respond to the impact of the Internet and information technologies on the intellectual property system, and vice-versa, as well as to encourage harmonization of intellectual property laws. These tasks have especially been welcomed by companies seeking outsourcing as a more effective means to a more profitable end.As a patent attorney in Taiwan, the writer has been a part of the international intellectual property community since 1974. For the three years starting 2004, under the guidance of Professor Zhou Zhong-Hai at China University of Political Science and Law, the writer has carried out research on the following two topics: (1) how the current intellectual property system is challenged by new Internet and information technologies emerging at a rapid pace; and (2) before a unanimous consent is reached globally, how a member country to an international intellectual property treaty could seek a balance between the protection of the domestic industry and fulfillment of its obligations as a contracting member by coordinating the country's intellectual property policies.After going through a large number of publications, articles and legal precedents related to the above two topics, as well as integrating relevant information generated by research, the writer has chosen "International Protection of E-commerce Related Intellectual Property" as the theme of his thesis. The thesis consists of three parts. The first part is an introduction. The second part contains five chapters. The first chapter offers a brief description on e-commerce and intellectual property. The second chapter discusses the provisions in several international intellectual property treaties relating to e-commerce. The third, fourth and fifth chapters analyze respectively trends in international patent, trademark and copyright protection with respect to e-commerce related subjects. The third part concludes the thesis.The first chapter of the second part discusses (1) the definition, evolvement and types of e-commerce, as well as the weight of unsolved intellectual property issues in the legal problems encountered in the e-commerce sector; ( 2) the definition and evolvement of, and international trends in intellectual property protection, as well as the influence of the intellectual property system on e-commerce; and (3 ) the challenges (in terms of patents, trademarks, and copyright) the intellectual property community has faced as a consequence of the popularity of e-commerce.The second chapter elaborates on (1) the role the international intellectual property treaties have played in resolving problems arising from transnational commercial disputes; (2) why the international intellectual property treaties are the by-products of negotiation and settlement among opposing countries; and (3) a comparison among the long-existent and new international intellectual property treaties, with highlights on the trends in the international intellectual property system and inadequacies in the treaties.The third chapter describes (1) the spirit and essential contents of the patent system; (2) the cross-country disputes arising from the broadening of patentable subject matters, especially computer programs and business models; and (3) patent related issues that remain to be resolved by international intellectual property organizations, such as indirect infringement and competency of prior art references from the Internet; and (4) the common and disparate concepts on intellectual property held by developing and developed countries that could be drawn from several instances of e-commerce related patent disputes.The fourth chapter describes (1) the spirit and essential contents of the trademark system; (2) the impact of the information and Internet technologies on the realm of "trademarks" and definition of "use of trademarks" and responses from the international intellectual property community; (3) the definition and ultimate function of domain names, its interference relationship with trademarks and opinions from the international intellectual property community; and (4) the common and disparate concepts on intellectual property held by developing and developed countries that could be drawn from several instances of e-commerce related trademark disputes.The fifth chapter describes (1) the essential spirit of the copyright system; (2) the impact of the information and Internet technologies on the enforcement of copyright, such as the right to re-production, public dissemination, and editing, as well as responses from the international intellectual property community; (3) legal liability issues arising from online information provision and online service provision; and (4) common and disparate concepts on intellectual property held by developing and developed countries that could be drawn from several instances of e-commerce related copyright disputes.After delving into an in-depth study on the mutual impact of the intellectual property system and e-commerce, as well as the inadequacies in the international intellectual property treaties in dealing with the various legal issues inherent in the relationship between e-commerce and intellectual property, in the last part the writer proposes his observations and suggestions as the conclusion of the thesis.