B) Need for an
international agreement
Internet network was often regarded as a zone of nonright
because the application of preexistent legal provisions encounters multiple
difficulties, in particular because of its international character and the
multiplicity of its actors. Thus a self-checking seems preferable with the
traditional system of the constraining legislative regulations. This one must
be based on the legal provisions already in force. To set up it in an effective
way, an international co-operation of the states is essential, so as to unify
the rules.
1) Self-regulation
Self-regulation aims at obtaining community of the Net surfers
an effective application of the principles of the intellectual property. It
addresses not only to the holders of rights, but also to the users and to the
intermediaries. It is thus necessary to set up institutions suitable for the
network, the purpose of which are information and the responsibilisation of the
actors, as well as the prevention and the payment of the litigations.
· Information and responsibilisation
First of all, the creation of a charter of the Internet,
having to be respected by all the actors of the network (producing of contents,
intermediaries) seems desirable. It would thus make it possible to clarify the
applicable rules and would lead the sites lodging of the Web pages to require
their customers the respect of the principles of the intellectual property.
Various proposals were already formulated, like that of the Beaussant
commission which put forward in March 1997 to the government a proposal of
charter of the Internet, that of the Canadian Association of the Suppliers of
Internet (A.C.F.I) or that of the association of the British providers
(I.S.P.A.).
· Prevention
The creation of devices aiming at preventing the conflicts by
the means of a harmonization of the procedures is essential. The recent
initiatives thus should be evoked that are the ICANN and the world network of
OMPI. The ICANN is a structure charged to manage the policy of naming of
Internet sites. It returns to him to harmonize the rules of naming with the
international law of the marks so as to avoid the practices of
« cybersquatting ». The world network of information of
OMPI must, to connect the various offices of intellectual property to him, and
in the long term to allow the electronic deposit of the international requests
for patents. These two structures should make it possible to solve the problems
concerning the patent rights (trade-mark law, substantive patent law).
Moreover, the creation of an international observatory of the network, like the
part played in France by the union of manufacturers (UNIFAB) can make it
possible to detect the attacks with the intellectual property.
· Arbitration
An arbitration board makes it possible to avoid the judicial
bodies. That allows a nonconflict payment of the litigations but especially,
avoids the conflicts between the laws of the various countries, which is
particularly appreciable as regards duty applied to Internet. Thus within the
framework of OMPI, a mechanism of payment accelerated of the litigations was
instituted near commission INTERDEPOSIT. This procedure, known as of
« mediation and of arbitration on line », has vocation as
soon as possible to settle the disagreements which have occurred between Net
surfers as regards rights of ownership intellectual and is held in a phase of
mediation and a phase of arbitration. One can also quote the initiative of the
Research center in Private Law of the university of Montreal which developed an
experimental project of resolution of the litigations in the cyberspace called
cybertribunal, as well as « virtual magistrate project »,
developed by A.A.A., an American association of arbitration.
But the installation and the perenniality of these
institutions can be done only by the way of an international co-operation on
the level.
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