Purchasing Rights on line Domenico Sindico Turin Master of Law in Intellectual Property WIPO / UNIVERSITY OF TURIN Turin, 1 December 2006

Contracts – general principles Freedom of the parties, which includes the freedom to choose the form of the contract (exceptions – registered property, which includes IP) Negotiation – good faith (true and correct information) if there is no negotiation particular formalities may be required Expression of a common will Guarantees for the weakest contractor - EU Directive on unfair commercial clauses Place and time of the conclusion of the contract Signature Intervention of a Notary Public

Contracts – General Principles Business to business unfair commercial clauses do not apply frequent use of frame agreements Business to Consumers – Business to consumer unfair commercial clauses may apply obligation to inform and give notice in writing

Contracts “at distance” Prior experience (e-) mail orders, catalogue sales, telephone purchases Applicable laws Directives 97/7/EC and 2000/31/EC National laws (in Italy D. Lgs. 22 May 1999, n. 185)

Contracts “at distance” Information (Business to consumer): must be provided in a clear and easily understandable form prior to the conclusion of the agreement or at the moment of its execution in order to make possible the formation of an “Informed Will” according to: Articles 4, 5, 6 Directive 97/7/EC (on Contracts at distance) Articles 5, 6, 10 of Directive 2000/31/EC (on electronic commerce)

Directive 97/7/EC – Prior Information Art. 4 – Prior information Identity and address of the supplier Main characteristics of goods and services Price including all taxes Delivery cost arrangements for payment and delivery Right of withdrawal Cost of means of communication Period of validity of the offer Duration of contract (if any)

Directive 97/7/EC – Information Art. 5 – written confirmation The consumer must receive confirmation in writing or other durable medium available and accessible of the information in art. 4 Art. 6 – right of withdrawal Right to withdraw without penalties during 7 days (minimum) Exceptions to the right to withdraw (software, services already performed)

Directive 2000/31/EC – Information by the service provider Art. 5 - General information Name, address and details including Place of registration in a public register Information about the supervising authority, if any VAT identification number, if any

Directive 2000/31/EC - Information by the service provider Art. 6 - Minimum requirements for commercial communications It must be clearly identifiable as such The person or company must be clearly identifiable Promotional offers, discounts, premiums and gifts must be clearly identifiable and the condition to have access to them clear and unambiguous Promotional competitions or games must be clearly identifiable and the condition for participation clear and unambiguous

Directive 2000/31/EC - Information to be provided by the service provider Art. 10 The different steps necessary to close the contract Whether the contract will be filed by the provider and whether it will be accessible The technical means for identifying and correcting input errors prior to placing the order The languages offered for the conclusion of the contract Indication of any relevant code of conduct to which the provider subscribes The above are not obligatory for contracts concluded by or other individual means of communication Contract terms and general conditions must be made available so that they can be stored and reproduced by the client

Directive 2000/31/EC – Responsibility of the service provider Art. 12 – “Mere conduit” Art. 13 – caching Art hosting

Specific aspects of contracts on-line Lack of signature Moment and place of conclusion of the contract Different means of closing the contract “point and click” orders through web-pages orders telephone orders Payments and security of credit card use

IPR contracts Patents, Models, Trademarks, Copyright Acquisition of rights - either by filing an application or by use Assignment and licence Patents and trade marks: in many countries they must be notarised in order to be registered but they are valid between the parties and the owner may defend his title in Court even if they are not notarised Copyright –must be granted in writing in many countries Use of Copyrighted materials It is often acquired on line (Music, movies, photos)

Acquisition of IP rights on line Filing an application Assignment and licence - in countries where a notarised signature is required a notarised electronic signature may be used, in other countries a simple electronic signature Right of use

Electronic signature the electronic signature of a document implies the use of a private and a public “key” which permits the parties to exchange a document to be sure of its origin and integrity. if the exchange is made through an authorised certification agency the document has the same value as a document executed by parties the certified origin and destination however are only limited to the certification of the computers sending and receiving the documents if a certified signature is necessary the private keys of the two parties must be used by the respective owners in the presence of a Notary Public

Purchases of copyrighted material on line - music There is no difference between the protection of copyrighted work published on the Internet or in any other traditional form use of means of compression: CD, DVD (Dolby, DTS, Mpeg) on-line : files.wav, files.mid, files.mp3, etc.

Specific violations Unauthorised download Unauthorised diffusion through Internet radio or web-radio Modification of the format (i.e. from files.wav to files.mid or mp3) Unauthorised links to other web pages NAPSTER, file sharing, p2p Possibilities of tracing violations through watermarking and use of crawlers

Legal distribution of music on the web DRM (Digital Rights Management) are now sufficiently safe and even the Major labels are selling music through the web Technical protection: – Cryptation – Protection against change of format and limitation of number of copies – Audio watermarking iTunes ed other sites

Other rights negotiable on line Photos Audiovisual and films Web pages Texts

Grazie per l’attenzione!