Concordia University Libraries CITATION GUIDES APA Citation Style This guide provides a basic introduction to the APA citation style. It is based on the 5th edition of the Publication Manual of the American Psychological Association published in 2001. Copies are available at the Vanier Library Reference Desk, in the Webster Library Reference Collection and on 3-hour Reserve (at both libraries). The call number for the handbook is BF 76.7 A46 2001. The Publication Manual is generally used for academic writing in the social sciences. The manual itself covers many aspects of research writing including selecting a topic, evaluating sources, taking notes, plagiarism, the mechanics of writing, the format of the research paper as well as the way to cite sources. This guide provides basic explanations and examples for the most common types of citations used by students. For additional information and examples, refer to the Publication Manual. Direct quotations of sources Direct quotations allow you to acknowledge a source within your text by providing a reference to exactly where in that source you found the information. The reader can then follow up on the complete reference in the Reference List page at the end of your paper. Quotations of less than 40 words should be incorporated in the text and enclosed with double quotation marks. Provide the author, publication year and a page number. She stated, "The 'placebo effect,' ...disappeared when behaviors were studied in this manner" (Miele, 1993, p. 276), but he did not clarify which behaviors were studied. Miele (1993) found that "the 'placebo effect,' which had been verified in previous studies, disappeared when [only the first group's] behaviors were studied in this manner" (p. 276). When making a quotation of more than 40 words, use a free-standing "block quotation" on a new line, indented five spaces and omit quotation marks. Miele (1993) found the following: The "placebo effect," which had been verified in previous studies, disappeared when behaviors were studied in this manner. Furthermore, the behaviors were never exhibited, even when reel [sic] drugs were administered. Earlier studies were clearly premature in attributing the results to a placebo effect. (p. 276) For electronic sources such as Web pages, provide a reference to the author, the year and the page number (if it is a PDF document), the paragraph number if visible or a heading followed by the paragraph number. \"The current system of managed care and the current approach to defining empirically supported treatments are shortsighted\" (Beutler, 2000, Conclusion section, 1) Further examples and explanations are available in Section 3.34 of the Publication Manual. Reference citations in the text When using your own words to refer indirectly to another author's work, you must identify the original source. A complete reference must appear in the Reference List at the end of your paper. In most cases, providing the author's last name and the publication year are sufficient: Smith (1997) compared reaction times... Within a paragraph, you need not include the year in subsequent references. Smith (1997) compared reaction times. Smith also found that... If there are two or three authors, include the last name of each and the publication year: ...as James and Ryerson (1999) demonstrated... ...as has been shown (James and Ryerson, 1999)... If there are three to five authors, cite all authors the first time; in subsequent citations, include only the last name of the first author followed by \"et al.\" and the year: Williams, Jones, Smith, Bradner, and Torrington (1983) found... Williams et al. (1983) also noticed that... The names of groups that serve as authors (e.g. corporations, associations, government agencies, and study groups) are usually spelled out each time they appear in a text citation. If it will not cause confusion for the reader, names may be abbreviated thereafter: First citation: (National Institute of Mental Health [NIMH], 1999) Subsequent citations: (NIMH, 1999) To cite a specific part of a source, indicate the page, chapter, figure, table or equation at the appropriate point in the text: (Czapiewski & Ruby, 1995, p. 10) (Wilmarth, 1980, chap. 3) For electronic sources that do not provide page numbers, use the paragraph number, if available, preceded by the symbol or abbreviation para. If neither is visible, cite the heading and the number of the paragraph following it to direct the reader to the quoted material. (Myers, 2000, 5) (Beutler, 2000, Conclusion section, para. 1) Further examples and explanations are available in Sections 3.94-3.103 of the Publication Manual. Reference List The alphabetical list of references that appears at the end of your paper contains more information about all of the sources you have used allowing readers to refer to them, as needed. The main characteristics are: The list of references must be on a new page at the end of your text The word References should be centered at the top of the page Entries are arranged alphabetically by the author's last name or by the title if there is no author Titles are italicized Entries are double-spaced (for the purposes of this handout, single-spacing is used) Below are some examples of the most common types of sources including online sources (web and databases). Book with one author Bernstein, T.M. (1965). The careful writer: A modern guide to English usage (2nd ed.). New York: Atheneum. Book with two to five authors Beck, C. A. J., & Sales, B. D. (2001). Family mediation: Facts, myths, and future prospects. Washington, DC: American Psychological Association. Two or more books by the same author Arrange alphabetically by the book's title Postman, N. (1985). Amusing ourselves to death: Public discourse in the age of show business. New York: Viking. Postman, N. (1985). The disappearance of childhood. New York: Vintage. Anthology or compilation Gibbs, J. T., & Huang, L. N. (Eds.). (1991). Children of color: Psychological interventions with minority youth. San Francisco: Jossey-Bass. Work in an anthology or an essay in a book Bjork, R. A. (1989). Retrieval inhibition as an adaptive mechanism in human memory. In H. L. Roediger III & F. I. M. Craik (Eds.), Varieties of memory & consciousness (pp. 309-330). Hillsdale, NJ: Erlbaum. Book by a corporate author Associations, corporations, agencies, government departments and organizations are considered authors when there is no single author American Psychological Association. (1972). Ethical standards of psychologists. Washington, DC: American Psychological Association. Article in a reference book or an entry in an encyclopedia If the article/entry is signed, include the author's name; if unsigned, begin with the title of the entry Guignon, C. B. (1998). Existentialism. In E. Craig (Ed.), Routledge encyclopedia of philosophy (Vol. 3, pp. 493-502). London: Routledge. Article in a journal Mellers, B. A. (2000). Choice and the relative pleasure of consequences. Psychological Bulletin, 126, 910-924. Note: List only the volume number if the periodical uses continuous pagination throughout a particular volume. If each issue begins with page 1, then list the issue number as well. Klimoski, R., & Palmer, S. (1993). The ADA and the hiring process in organizations. Consulting Psychology Journal: Practice and Research, 45(2), 10-36. Article in a newspaper or magazine Semenak, S. (1995, December 28). Feeling right at home: Government residence eschews traditional rules. Montreal Gazette, p. A4. Driedger, S. D. (1998, April 20). After divorce. Maclean's, 111(16), 38-43. Television or radio program MacIntyre, L. (Reporter). (2002, January 23). Scandal of the Century [Television series episode]. In H. Cashore (Producer), The fifth estate. Toronto: Canadian Broadcasting Corporation. Film, videorecording or DVD Kubrick, S. (Director). (1980). The Shining [Motion picture]. United States: Warner Brothers. Article from a database Provide the same information as you would for a printed journal article and add a retrieval statement that gives the date of retrieval and the proper name of the database. Schredl, M., Brenner, C., & Faul, C. (2002). Positive attitude toward dreams: Reliability and stability of ten-item scale. North American Journal of Psychology, 4, 343-346. Retrieved December 16, 2004, from Academic Search Premier database. Dussault, M., & Barnett, B. G. Peer-assisted leadership: Reducing educational managers' professional isolation. Journal of Educational Administration, 34(3), 5-14. Retrieved December 16, 2004, from ABI/INFORM Global database. Non-periodical documents on the Internet Library and Archives Canada. (2002). Celebrating Women's Achievements: Women Artists in Canada. Retrieved December 16, 2004, from http://www.collectionscanada.ca/women/h12-500-e.html Article in an Internet-only journal Pelling, N. (2002, May). The use of technology in career counseling. Journal of Technology in Counseling, 2(2). Retrieved December 16, 2004, from http://jtc.colstate.edu/vol2_2/pelling.htm Further examples and explanations are available in Chapter 4 of the Publication Manual. Revised: December 2004 CHAPTER 14 International CyberLaw The Internet has already been a source of tremendous progress in China ... [b]ut countries that restrict free access to information or violate the basic rights of internet users risk walling themselves off from the progress of the next century .... [U]ltimately, this issue isn't just about information freedom; it is about what kind of world we want and what kind of world we will inhabit. Secretary of State Hillary Rodham Clinton, Jan. 21, 2010 It is a lie to claim that the Internet is an absolutely free space without regulations. The truth is that it is the extension of the real world. Therefore, implementing monitoring according to a country's national context is what any government has to do .... China will certainly and gradually change this reality, but the starting point of the change should be in the interests of the entire Chinese society instead of for the convenience or desire of a small group of people. Zhang Jingwei People's Daily Online (China's state-run newspaper), Jan. 26, 2010 LEARNING OUTCOMES After you read this chapter, you should be able to: Identify key organizations that administer and regulate international cyberlaw Explain how a firm's global intellectual assets are regulated online Explain the major issues involved with cross-border employee and data management Discuss differences between U.S. and international online regulations Introduction The Internet is no longer the province of the economic elites. Access and use of the Internet has thoroughly penetrated the globe. China surpassed the United States in 2008 to become the largest nation of Internet users in the world. The number of Internet users globally has increased almost 400 percent since 2000. Citizens from countries as diverse as Azerbaijan and Vietnam are witnessing staggering increases in user activity. There is little sign that such increases will slow anytime soon. 439 Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 440 Part 4: Regulatory, Compliance and Liability Issues With global interaction, however, comes a need for global regulation. Accompanying the advances in commerce and research available online are crime, intellectual property disputes, and misuse of online assets. Using a phrase that is by now almost too obvious to mention, where technology leads, regulation inevitably follows. This chapter will address some key issues related to global legal and regulatory issues online. After addressing problems of global governance, the chapter will turn to issues related to intellectual assets and treatment of individual data. The chapter then closes with a discussion of global Internet crime. As you read this chapter, look closely at the widely varying practices of different nations toward online regulation: What is closely regulated by one nation is left relatively untouched by another. These laws do not simply present rules to follow, but reveal important insights into attitudes and beliefs of the society toward the Internet, the use of information, and the broader world. Who Governs the Online World? Just as the Internet offers unprecedented opportunities for international communication and commerce, so too the Internet presents unique and difficult jurisdictional questions. The question of who exactly has what authority to resolve an online legal issue is far from certain. Businesses must know what law applies to their dealings so that these laws may be complied with. In other words, businesses must know the court's choice of law in an online dispute. Businesses must also be aware of the appropriate forum for resolving international legal disputes in cyberspace. Whether a dispute will be resolved in the United States or elsewhere may have significant impact on the business decisions of a global Internet firm. The Problem of Jurisdiction Nearly all commentators agree that it is simply not possible for a single entity or group to control the Internet and thus have jurisdiction over its boundaries. Making matters more difficult, data is so easily converted and packaged as it moves from one computer to the other that the origin of the offending data may be easily masked by the author. Distance no longer matters, as a transmission from California to Nevada is as easy as one from California to India. Fundamentally, an Internet user places herself in a number of \"virtual places\" when she makes a statement, purchase, or sale online. The user and her data are \"present\" in the location of the originating computer, the locations of the routing networks of cyberspace, and the destination of the transmission. Thus, jurisdiction may be asserted in one of many places, such as the location of: the the the the the Internet user Internet service provider various communications conduits through which the data flows content provider server that hosts the content provider's information. The question remains: Whose national laws apply in a truly global online world? It is virtually impossible for a global online firm to comply with every applicable law in every nation when doing business around the world. Some law must apply, but whose national law that should be in a particular circumstance remains undecided. Enforcement of Online Jurisdiction Principles of National Enforcement A number of principles are employed to establish the power of countries over their national boundaries. These perceptions of Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Chapter 14: International CyberLaw 441 sovereignty have been well settled for hundreds of years. With the advent of cyberspace, they present significantly differing views on the sources of international authority for regulating cyberspace. The following three principles are the most relevant to jurisdictional issues in cyberspace: Territoriality Principle The territoriality principle states that a nation is sovereign over its physical territory to the exclusion of other states. Nations have the power to sanction and control conduct within the bounds of their own physical boundaries. The territoriality principle allows nations to regulate Internet content and services offered from within its boundaries. However, this principle cannot easily encompass cyberspace because cyberspace does not have a concrete location. Cyberspace is a network so large and so distributed that removing one, ten, or even ten thousand computers would not damage the entire network. Nationality Principle The nationality principle affirms that a nation may control its citizens. This principle also defines the rights and responsibilities of citizens both inside and outside the territory of the nation. This principle has been used to establish that a court has criminal jurisdiction if the defendant is a national of the forum state and that a state may tax the worldwide income of its nationals. The nationality principle would guide Internet jurisdiction by establishing the nationality of the parties as the key factor determining jurisdiction, not their physical location. Effects Principle The effects principle holds that a country may protect its interests by criminalizing an act that it deems harmful to its national security. If a nation deems a practice particularly harmful, it may ban this act both within and outside its national borders. The Chinese government has passed a variety of laws that censor a variety of topics including online opinion critical of the government. The Saudi Arabian government censors certain \"immoral\" topics such as drug use, pornography, and religious conversion of Muslims. Other nations such as Australia and South Korea also engage in censorship of certain topics online. Although a number of disputes have arisen over which national law applies online, one particular dispute has become one of the most widely examined Internet jurisdictional cases in the world. This clash pits the commercial and speech interests of a leading multinational Internet corporation against the values and laws of a single nation banning a controversial practice. The following section and case shows how an American court resolved the challenge of enforcing national regulation in a truly borderless medium. Internet Jurisdiction in the European Union As discussed in Chapter 8, the United States's approach to jurisdiction is based on \"purposeful direction\" of the individual or entity toward the jurisdiction. Any assertion of jurisdiction must meet basic standards of due process. Only if a citizen has some minimum contacts with the forum that are specifically directed toward that forum can a state's jurisdiction apply. These rules are applied to both online and traditional transactions. The European Union bases its jurisdictional rules on the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Brussels 1968, also known as the Brussels Convention. This Convention bases jurisdiction on the defendant's domicile, if there is a close link between the court and the action, or if jurisdiction would facilitate the \"sound administration of justice.\" In 2002, the Brussels Regulation, a modification of the Brussels Convention, became effective. This Regulation does not modify the key principles of the Brussels Convention, but makes changes specifically targeted toward electronic commerce. Most notable is Article 15 of the Regulation, which permits jurisdiction in a consumer's domicile if the foreign defendant pursues commercial or professional activities \"by any means\" in Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 442 Part 4: Regulatory, Compliance and Liability Issues the nation where the consumer lives. The \"by any means\" language does not include transmission of a merely passive website. However, businesses can submit themselves to jurisdiction by both the intended and unintended effects of the business on that jurisdiction. Not bound by limitations of the U.S. Constitution, the regulation does not require notice or minimum contacts for jurisdiction to attach. The Brussels Regulation was controversial, as industry groups complained that it would impede the development of electronic commerce due to the risk of being subjected to an uncertain number of jurisdictions. Regulators countered that a strong consumer-favorable jurisdictional rule would encourage wary shoppers to purchase goods and services online and help neutralize any competitive advantage held by proconsumer protection laws of the United States. American and European Principles Collide It did not take many years after the popularization of the Internet for jurisdictional conflicts to arise between interests in Europe and the United States. Yahoo!, a popular search engine and web directory, permitted Nazi memorabilia to be sold on its auction site. This practice conflicted with French law, which prohibits the sale or exhibition of objects that incite racial hatred. Two human rights organizations filed a lawsuit in France against Yahoo! alleging that its auction practices violated French law. The French court ruled that Yahoo! was violating French law by failing to block French users from accessing the prohibited material. The judge stayed the execution of the judgment until a panel of experts could decide whether it was technically possible for a U.S.-based Internet company to identify and exclude French users. The panel concluded, by inspecting the Internet service provider addresses of users, that a filtering system could be implemented that would block most French users. The judge then confirmed his ruling and gave Yahoo! 90 days to comply. If Yahoo! failed to do so, it would be fined $13,000 a day until it complied with the order. Yahoo! responded by removing the offending material from its French portal and placing warning messages on its U.S. site informing French users that they could be breaking the law in their country if they observed certain offensive material. However, the controversy did not end there. Yahoo! filed a lawsuit in California, seeking a declaration that the French court's order was unenforceable in the United States. Should a French court order regarding an American corporation have any effect within U.S. borders? The following case resolves this difficult legal question. YAHOO!, INC. v. LA LIGUE CONTRE LE RACISME ET L 'ANTISEMITISME 169 F. Supp. 2d 1181 (N.D. Ca. 2001) Jeremy Fogel, U.S. District Judge [The court described the facts, summarized above, leading up to this lawsuit in the United States. The court then turned to the relevant legal issues in this case.] As this Court and others have observed, the instant case presents novel and important issues arising from the global reach of the Internet. Indeed, the specific facts of this case implicate issues of policy, politics, and culture that are beyond the purview of one nation's judiciary. Thus it is critical that the Court define at the outset what is and is not at stake in the present proceeding. This case is not about the moral acceptability of promoting the symbols or propaganda of Nazism. Most would agree that such acts are profoundly offensive. By any reasonable standard of morality, the Nazis were responsible for one of the worst displays of inhumanity in recorded history. This Court is acutely (Continued ) Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Chapter 14: International CyberLaw mindful of the emotional pain reminders of the Nazi era cause to Holocaust survivors and deeply respectful of the motivations of the French Republic in enacting the underlying statutes and of the defendant organizations in seeking relief under those statutes. Vigilance is the key to preventing atrocities such as the Holocaust from occurring again. Nor is this case about the right of France or any other nation to determine its own law and social policies. A basic function of a sovereign state is to determine by law what forms of speech and conduct are acceptable within its borders. In this instance, as a nation whose citizens suffered the effects of Nazism in ways that are incomprehensible to most Americans, France clearly has the right to enact and enforce laws such as those relied upon by the French Court here .... In particular, there is no doubt that France may and will continue to ban the purchase and possession within its borders of Nazi and Third Reich related matter and to seek criminal sanctions against those who violate the law. What is at issue here is whether it is consistent with the Constitution and laws of the United States for another nation to regulate speech by a United States resident within the United States on the basis that such speech can be accessed by Internet users in that nation. In a world in which ideas and information transcend borders and the Internet in particular renders the physical distance between speaker and audience virtually meaningless, the implications of this question go far beyond the facts of this case. The modern world is home to widely varied cultures with radically divergent value systems .... If the government or another party in one of these sovereign nations were to seek enforcement of such laws against Yahoo! or another U.S.-based Internet service provider, what principles should guide the court's analysis? The Court has stated that it must and will decide this case in accordance with the Constitution and laws of the United States. It recognizes that in so doing, it necessarily adopts certain value judgments embedded in those enactments, including the fundamental judgment expressed in the First Amendment that it is preferable to permit the nonviolent expression of offensive viewpoints rather than to impose viewpoint-based governmental regulation upon speech. The government and people of France have made a different judgment based upon their own experience. In undertaking its inquiry as to the proper application of the laws of the United States, the Court intends no disrespect for that judgment or for the experience that has informed it .... 443 COMITY No legal judgment has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. 28 U.S.C. 1738. However, the United States Constitution and implementing legislation require that full faith and credit be given to judgments of sister states, territories, and possessions of the United States. U.S. Const. art. IV, 1, cl. 1. The extent to which the United States, or any state, honors the judicial decrees of foreign nations is a matter of choice, governed by \"the comity of nations.\" Hilton v. Guyot, 159 U.S. 113, 163, 16 S.Ct. 139, 40 L.Ed. 95 (1895). Comity \"is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other.\" Hilton, 159 U.S. at 163-64, 16 S.Ct. 139 (1895). United States courts generally recognize foreign judgments and decrees unless enforcement would be prejudicial or contrary to the country's interests.... As discussed previously, the French order's content and viewpoint-based regulation of the web pages and auction site on Yahoo.com, while entitled to great deference as an articulation of French law, clearly would be inconsistent with the First Amendment if mandated by a court in the United States. What makes this case uniquely challenging is that the Internet in effect allows one to speak in more than one place at the same time. Although France has the sovereign right to regulate what speech is permissible in France, this Court may not enforce a foreign order that violates the protections of the United States Constitution by chilling protected speech that occurs simultaneously within our borders.... The reason for limiting comity in this area is sound. The protection to free speech and the press embodied in the First amendment would be seriously jeopardized by the entry of foreign judgments granted pursuant to standards deemed appropriate in another country but considered antithetical to the protections afforded the press by the U.S. Constitution. Absent a body of law that establishes international standards with respect to speech on the Internet and an appropriate treaty or legislation addressing enforcement of such standards to speech originating within the United States, the principle of comity is outweighed by the Court's obligation to uphold the First Amendment.... Accordingly, [Yahoo!'s] motion for summary judgment will be granted. The Clerk shall enter judgment and close the file. IT IS SO ORDERED. (Continued ) Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 444 Part 4: Regulatory, Compliance and Liability Issues CASE QUESTIONS 1. This case was been widely discussed by commentators as a watershed decision. How does this case highlight the development of how courts, government, and society think about the Internet? 2. Would the court's decision be different if Yahoo! could block access by French users with a minimum of cost and effort? Why or why not? 3. How does this decision enlighten lawmakers about the power of individual governments to regulate global cyberspace? Self-Regulation: The Future of Dispute Resolution? Although it is unlikely that national governments will converge on a single set of jurisdictional rules, large online commercial enterprises have filled the gap. One interesting example is eBay, one of the largest online auction and shopping websites in the world. eBay facilitates several million transactions daily, many small in value, and disputes between buyers and sellers are inevitable. These disputes are resolved by a proprietary dispute resolution mechanism, an online computer-assistant negotiation, and then online mediation. Parties use an interactive computer program that helps focus the issues in disputes and recommends agreements that have frequently been accepted before in similar situations. This program, known as an expert system, learns from its successes and failures, which in turn improves the suggestions available to parties in its database. Once this process is complete, human mediation occurs between the parties entirely online. Although such a process is currently utilized by large entities like eBay who have a committed user base, the potential for broader application is intriguing. The system operates at low cost and as a result fewer than one in a thousand eBay disputes end up in court. International Regulation of Trademark Law Trademark law is primarily a creature of national law. However, international law sets down guidelines of uniform definition and protection and establishes ways to make it easier for owners to acquire rights in different countries. The following discussion provides examples of leading international trademark laws and problems. Key International Trademark Treaties Trade-Related Aspects of Intellectual Property Rights The Trade-Related Aspects of Intellectual Property Rights agreement (TRIPS) is one of the World Trade Organization's (WTO) multilateral agreements. Like the other WTO multilateral agreements, the WTO member countries are automatically members of the TRIPS Agreement. TRIPS establishes a comprehensive set of rights and obligations governing international trade in intellectual property. To accomplish this, the Agreement establishes a common minimum of protection for intellectual property rights within the territories of all WTO member countries. The TRIPS Agreement offers a number of important points. Multilateral Intellectual Property Agreements WTO member countries are required to observe the substantive provisions of major multilateral intellectual property agreements such as the Berne Convention and Paris Convention (both will be discussed further later in this Chapter). TRIPS also supplements these multilateral intellectual property agreements. For example, the Agreements set the minimum terms of copyrights at 50 years, patents at 20 years, and trademarks at 7 years. Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Chapter 14: International CyberLaw 445 Enforcement of Intellectual Property Rights TRIPS establishes criteria for the effective enforcement of intellectual property rights. WTO member countries are bound by the WTO's Dispute Resolution Understanding agreement. This understanding establishes a mechanism for settling intellectual property disputes between WTO member countries. It establishes a system of panels and appellate review to administer dispute resolution provisions and encourages voluntary compliance with its rules. International Intellectual Property Rights The Agreements extends basic international trade principles to the field of international intellectual property rights. The national treatment principle requires each member country to extend to nationals of other members treatment \"no less favorable\" than that which it gives its own nationals regarding intellectual property rights. The transparency principle requires member countries to publish and notify the WTO's TRIPS Council of all relevant laws, regulations, and practices, and to promptly respond to other member countries' requests for information about its intellectual property rules. The most favored nation principle requires a member country to grant to the nationals of all other member countries the most favorable treatment that it grants to the nationals of any one of them. The International Convention for the Protection of Industrial Property (Paris Convention) The Paris Convention establishes a \"union\" of countries responsible for protecting industrial property rights. Industrial property rights include patent, trademarks, and industrial designs. Member countries have three requirements for compliance. First, signatory nations must follow the principle of national treatment as mentioned earlier in the TRIPS agreement. Second, signatory nations must establish a right of priority in their intellectual property systems, whereby an applicant for protection in one country has up to 12 months to file an application in other countries, and that those other countries must then treat the application as if it were filed on the same day as the original application. Finally, the nation must establish basic minimum criteria and procedures for granting industrial property rights. Trademark Law Treaty The Trademark Law Treaty seeks to achieve uniformity in various trademark procedures. The treaty was signed at the Diplomatic Conference in Geneva on October 27, 1994. The key features of the treaty seek to harmonize the following rules: the initial and renewal terms of registering trademarks is 10 years; service marks now have equal protection as trademarks under the Paris Convention; various procedures related to renewal applications, powers of attorney, authentication, and others have been streamlined. Madrid Protocol The Madrid Protocol establishes a single international trademark application and registration system that provides trademark protection in a number of countries. Managed by the WIPO, international registration has the same effect as if registration was made in each of the signatory countries. If a particular national office does not refuse protection, then the trademark has the same protection in that country as any other. The Madrid system significantly simplifies trademark management. Companies may record subsequent changes (i.e. change of ownership, change of address of the holder, even renewal of registration) with a single procedural step. A number of countries have signed the Madrid Protocol, such as China, France, Poland, Russia, Spain, the United Kingdom, and Switzerland. After some initial reluctance related to E.U. voting rights, the United States joined the Madrid Protocol in November, 2003. Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 446 Part 4: Regulatory, Compliance and Liability Issues Resolving Trademark Domain Name Disputes through a Uniform Dispute Resolution Policy The WIPO has established a Uniform Dispute Resolution Policy (UDRP) that aids in resolving domain main disputes between trademark holders and domain name owners. The UDRP holds that if a domain name registrant refuses in bad faith to transfer the domain name over to a valid trademark holder of the name, the trademark holder may obtain cancellation of the domain through the UDRP. A UDRP complainant must show three things in order to retrieve the domain from the respondent: the respondent's domain name is identical or confusingly similar to the trademark, the respondent has no rights in the domain name, and the respondent has registered the domain name and possesses it in bad faith. Unlike traditional trademark infringement, where subjective intent is relevant, under the UDRP a showing of the respondent's bad faith is mandatory. \"Bad faith\" includes, for example, purchasing the domain name with the intent to resell it at a higher price, prevent the trademark owner from obtaining the name, disrupt a competitor's business, or attract the trademark holder's potential customers for commercial gain. Although many nations follow the UDRP standards, some countries have developed their own policies toward dispute resolution. For example, the United Kingdom has developed its own dispute resolution service policy that requires the trademark holder prove the domain name owner is engaged in an \"abusive registration.\" This system is more complainant-friendly in that it does not require the trademark owner to meet the burden of showing bad faith by the domain name owner, which the UDRP requires. China, by contrast, now shields from complaints owners of .cn domains (the top level domain for China) who have registered at least two years with an accredited dispute resolution service provider. Australia's dispute resolution policy applies to domain names not only similar to trademark or a service mark but to any name in which a complainant possesses rights, including the complainant's personal name. Ireland's policy is also expansive, covering trade and service marks, reputable personal names and pseudonyms, as well as geographical indications. Resolution of a UDRP proceeding occurs quickly by judicial standards, generally taking about two months to resolve. Thus the UDRP becomes most attractive to trademark owners who are most interested in having the offending domain name transferred rather than obtaining money damages that a court can provide. If necessary, decisions of the UDRP may be appealed to a U.S. federal court. Global Disputes Over Domain Names Disputes as to who owns a domain name (the owner of the real-world trademark or the owner of the domain name online) have arisen both within the United States and throughout the world. Unfortunately, no single overarching rule exists regarding the trademark status of domain names and what circumstances permit the transfer of what domain name to another. Purchasers who buy domain names in order to extract revenue from the legitimate trademark holder are generally denied ownership. In addition, purchasers who own domains similar to legitimate trademarks for the purpose of commercially exploiting the similarity are also generally denied ownership. Uniformity is not complete, however, and court rulings can be fact-dependent in the absence of clear international consensus on domain name rights. Below are some are examples of national treatment related to defining ownership of a domain name. United Kingdom The U.K. courts faced one of the earliest domain name disputes, which involved conflicting trademark owners. In Prince plc v. Prince Sports Group, Inc., a Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Chapter 14: International CyberLaw 447 U.S. manufacturer of sports equipment sought to enjoin a U.K. defendant, Prince plc, an information technology company, from using the domain name prince.com. Both parties had valid trademarks supporting use of the name. Prince plc held valid common law rights in the United Kingdom to use the prince mark, while the U.S. firm completed valid trademark registrations of the word \"prince\" in both the United Kingdom and the United States. The U.K. court, relying on the principle of \"first in time, first in right,\" concluded that Prince plc could retain the domain because it had registered the domain name first. The U.K. court also concluded that Prince plc could retain the domain name because, as an information technology company, it was completely distinct from the U.S. sports company and would not cause a likelihood of confusion between the companies. U.K. courts have also ruled against cybersquatters, concluding that various defendants have \"passed off\" the trademark holder's well-known marks by cybersquatting on domain names. In addition, a U.K. court found that it had jurisdiction over a German website because the U.K. plaintiff alleged harm and damages resulting within the United Kingdom. The U.K. plaintiff cited Section 2 of the Brussels convention, which permits lawsuits to be heard where the unlawful event occurred. Russia Russia's policy toward domain names has changed significantly since the early days of the Internet. In 2001, Eastman Kodak filed suit in Russia to stop a former dealer from using the www.kodak.ru website. The Russian court ruled that because a domain name was neither a good nor a service, trademark law did not apply to it and allowed the dealer to keep the site. After the enactment of a 2002 Trademark Law, trademark owners have been able to promptly register domains purchased by squatters. Both Google and Gilette have been successful in seizing Russian domain names sporting their trademarks from illegal purchasers. Although some critics have charged that dispute resolution authorities may have bias in favor of repeat users of the system, there is significant progress toward a transparent and reliable system. South America Many South American nations have an array of legal sources that can apply to domain names, including international treaties, national constitutions, general principles of civil and criminal law, trademark legislation, court decisions, and administration policies. In spite of this complexity, courts appear willing to transfer domain names when trademark interests are threatened. In Chile, an arbitrator reassigned the domain name hugoboss.cl to Hugo Boss from a local representative of a perfume distribution company. Another Chilean arbitrator reassigned meetro.cl from a third party to a public transit corporation that provides subway services on the grounds the site would create confusion amongst public consumers. In Colombia, national airline Avianca failed to timely renew its domain name. The domain was quickly snatched up by a resident of Florida who linked it with a travel agency website. The arbitrator found that the new owner had no rights to the domain and ordered reassignment to the national airline. A firm's right to seize another's domain name is not limitless, however. In Peru, a WIPO panel rejected a petition by a cosmetics company who owned the trademark \"Esika\" to seize the esika.com and esika.net domain names from a real estate enterprise. The court reasoned that the two firm's marks are both registered trademarks and exist in different and noncompeting industries. Asia As Internet use in Asia has increased, so has the number of domain name disputes. For example, in India, Yahoo! sued to stop an Indian company from acquiring and using the domain name Yahooindia.com without a license. Yahooindia raised a number of common defenses, such as placing disclaimers on its website disassociating Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 448 Part 4: Regulatory, Compliance and Liability Issues itself with Yahoo!, citing the sophistication of Internet users, claiming its registration of the domain name is a complete defense, and asserting that because India did not have legislation protecting service marks it could not be restrained. The Indian court rejected Yahooindia's arguments, reasoning that a disclaimer does not reduce confusion, and stating that trademark law applies with equal force online as well as in the physical world. Other Asian countries have also witnessed trademark domain name disputes. In China, Yahoo! prevailed in securing the domain name yahoo.com.cn from various cybersquatters. In New Zealand, quokka.com, which had a license to use the America's Cup Trademark, filed a complaint against two New Zealanders who registered an Internet address using the trademark. Lawsuits were filed in both New Zealand and the United States. Hours before a U.S. federal judge was to rule in the case, the parties settled, and the two New Zealanders agreed to transfer the domain names. The Problem of Enforcement Even if a company with a valid trademark discovers a potentially infringing cybersquatter, enforcing that trademark on an international scale may pose the following significant difficulties. A popular trademark is subject to dilution online because of the plethora of available domain names with deceptively similar marks. For example, the website att.com has attracted such deceptive imitators as attt.com, at-t.com, attcellular.com, attweb.com, attonline.com, attnetwork.net, and others. Even if a cybersquatter is found, effective judicial service on the squatter may be difficult, as addresses given are often fictitious. If a deceptive domain name holder is found and served with a cease-and-desist notice, the holder could transfer the domain name to a third party. The holder's name may remain listed for a time with Network Solutions, Inc. (NSI), the entity responsible for many domain name allocations, even if it does not pay registration fees or loses a lawsuit. The best strategy for protecting domain name trademarks may be a good offensive stance. Purchase a domain name and its related terms as quickly as possible before a cybersquatter grabs it. Protection of Creative Works through Copyright Law A basic international purpose of copyright law is to encourage creativity by recognizing a property right in the artist's creation. The creator of the work should have the power to regulate dissemination of the creation as well as profit from it. Like trademark law, copyright law is generally regulated on a nation by nation basis. The following section discusses key issues related to international copyright law and cyberspace. Important International Copyright Initiatives The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) As noted earlier in this chapter, TRIPS is one of the most important agreements impacting intellectual property rights, establishing comprehensive rights and obligations through minimum standards of protections. Although TRIPS does specifically speak to copyright issues, such as protection of computer programs, compilations of data, and rental rights, its most significant powers arise from incorporation of the copyright-focused Berne Convention for the Protection of Literary and Artistic Works, also known as the Berne Convention. Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Chapter 14: International CyberLaw 449 The Berne Convention The Berne Convention creates a union of countries responsible for protecting literary and artistic rights (that is, copyrights). Like the TRIPS agreement, Berne Convention members must practice the principle of national treatment. In addition, no formalities (such as the use of the copyright symbol ) may be required to protect artistic property. Third, artistic property protected in one member country is protected in all. Finally, the Berne Convention establishes basic minimum criteria and procedures for granting literary artistic rights. A number of the cyberlaw cases that courts hear globally involve claims of copyright infringement in violation of the national laws that implement the Berne Convention. Examples include the following: Wang Meng v. Century Internet Communications Technology Co.: A case in which a court in Beijing, China, held that the defendant had violated the copyrights of several authors by posting their works on a website without their permission. International Federation of the Phonographic Industry v. Olsson: A case in which a Swedish court held that a teenager had not infringed any copyrights by posting links to copyright recordings on his website. European Union Copyright Directive The European Union Copyright Directive (EUCD) was formally adopted by the European Parliament on February 14, 2001. The EUCD provides harmonization of copyright protection for rightholders. The EUCD establishes a universal definition of noncommercial private copying. Also, the EUCD authorizes the imposition of penalties against any person who attempts to circumvent security measures from digital files. Article 6 outlaws devices or products \"designed to circumvent technological measures\" that thwart piracy. The EUCD permits limited replication of copyrighted material for \"transient and incidental\" reproductions that are an essential part of computer transmission, such as the distribution of files on computer networks. Most E.U. member nations have implemented the directive nationally. Nations such as Finland, France, the United Kingdom, and others have made specific changes to bring their laws in compliance of the directive. WIPO Copyright Treaty The WIPO Copyright Treaty (WCT) builds upon the foundation of the Berne Convention and explicitly states that it does not \"derogate from existing obligations\" of that convention. The WCT gives copyright holders the power to authorize publication of their works in both wire and wireless modes and in a manner established by the copyright holder. The determination of when infringement occurs is left to the individual member state's national law. However, Article 12 states that signatories must provide legal remedies to copyright holders whose works have been illegally copied through the circumvention of antipiracy technologies. Injunctions and other speedy legal tools must be available to enforce the copyright. Although the WCT requires that signatories develop enforcement measures, the WCT does not have a specific enforcement provision similar to TRIPS. Global Obligations of Internet Service Providers One of the most pressing global online copyright issues is that of liability of Internet service providers (ISPs) for copyright-infringing materials that pass through their networks or data storage. An ISP typically provides its customers access to online services such as email and Internet access in exchange for a monthly fee. The DMCA, discussed in Chapter 5, protects online service providers in the United States from copyright infringement of its users unless evidence exists of willful or purposeful disregard of copyrights. Similar protection is available for European ISPs. This protection is provided through European Community Electronic Commerce Directive (ECD). This directive affirms that free circulation of information in the European Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 450 Part 4: Regulatory, Compliance and Liability Issues Google Community is a guaranteed freedom of expression protected by Article 10(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The ECD specifically shields ISPs from monetary liability arising from the transient storage or reproduction of illegal materials. Only injunctive relief, the removal of offending material and prevention of further infringement, remains available to copyright holders. Furthermore, an ISP will not be held liable for storing illegal information placed there by a user as long as the provider is not aware of the activity and fails to act quickly to remove or disable access to the information. Under the ECD, providers will also not be held liable for transitory transmission of illegal data if the provider, once informed of the illegal information, acts expeditiously to remove or disable access to the illegal information from the user. The ECD also prevents E.U. nations from imposing obligations on providers to monitor transmitted or stored information. E.U. nations also cannot impose upon ISPs a general obligation to seek out facts or circumstances indicating illegal activity. ISPs in the European Union may be insulated from providing even the most basic of information. In 2008, the European Court of Justice ruled that European nations do not have to pass legislation requiring that ISPs disclose the personal data of subscribers because of a pending civil lawsuit. In Productores de Msica de Espaa v. Telefnica de Espaa, a group of Spanish music and video producers requested a Spanish ISP provide them with identities of anonymous users arising out of a lawsuit alleging illegal file sharing. The court said that European law compels no such legal requirement, and it urged E.U. nations to strike a \"fair balance ...between the various fundamental rights protected by the Community legal order.\" Although the ECD in the European Union is one of the most developed regimes regulating ISPs, a number of common principles exist in national laws toward ISPs. For example, with regard to hosting of third-party information, legislation exists in China, New Zealand, and Singapore as well as Europe and the United States that provides safe harbor protection to ISPs. In addition, China, South Korea, Japan, Singapore, New Zealand, and a host of other nations immunize providers from copyright infringing content that exists on their servers. Like in Europe, liability generally attaches only when providers fail to take action after becoming aware of allegations. Many nations even have formalized \"notice and takedown\" systems, whereby copyright owners may contact providers with allegations of infringement which in turn triggers an obligation to remove the content that is the subject of the notice. If a provider fails to do so, it loses the safe harbor protections. One exception is Japan, whereby alleged infringers are notified of the notice-and-takedown proceeding and have an opportunity to challenge the claim of infringement before content is removed. In order to deter frivolous claims, Singapore, China, South Korea, and the United States all have legislation authorizing punishment of those who knowingly file false claims of infringement with the ISP. Google China: Search Engine Giant Meets Government Censorship Google is the world's largest Internet search engine firm. One of its basic mottos is \"don't be evil.\" Google has been a strong proponent of the free flow of information on the Internet. Google, however, faced a significant challenge to that philosophy when in 2006 it agreed to filter certain keywords given to it by the Chinese government. Some searches such as the phrase \"Tank Man,\" which was related to the 1989 Tiananmen Square democracy protests, were blocked altogether. Google's reluctant cooperation received such disapproval that Congress threatened Google in the United States with sanctions over its role in handing over information about Chinese dissidents. One member of Congress even introduced the Global Online Freedom Act, which if passed would have Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Chapter 14: International CyberLaw 451 criminalized Google's conduct in China, such as censoring the results of search engines and handing over personally identifiable information to Chinese law enforcement. The bill never became law, and would have precluded most U.S. information technology firms from working in China, but shows the deep consternation held by members of Congress over China's actions. In early 2010, Google finally relented and stated that it was \"no longer willing to continue censoring\" its results on google.cn. The trigger for this reversal was the discovery of hackers who accessed two gmail accounts as part of a vast Chinese espionage campaign. Experts believed their purpose was the gaining of information about Chinese political dissents and secret military technology. The state-run newspaper China Daily authored an aggressive response, noting that Internet information is far from free in other countries, and it recounted how the United States granted significant increases to the government to monitor communications without permission following the attacks of 9/11. The article concluded, \"Google should take the Chinese people's feelings into consideration and stop using Chinese customers as hostage to confront the Chinese government.... We do not hope that giant multinational enterprises such as Google will become pure political tools for the U.S. to export its own concepts of values. A lot of Chinese people like Google, but they do not want to become tools being used by Google.\" Business Method Patents and Trade Secrets The rapid increase of electronic commerce has made business methods increasingly essential for global business. Obtaining a patent for a novel business method, such as oneclick ordering of a product, can give a company a significant competitive advantage on an international scale. Although many countries recognize some form of business method patents, in particular for software-related applications, the details and specific coverage can vary from country to country. As noted in Chapter 6, computer software in the United States is protected under the federal patent legal regime. In the European Union, Article 52 of the Convention on the Grant of European Patents of the European Patent Convention (EPC) states that \"programs for computers\" are excluded from patentability. In 2000, a diplomatic conference group attempted to revise the EPC in order to change Article 52 and grant patent protection, but the measure was not successfully adopted. However, a closer look at the E.U. system reveals that the European Patent Office has issued tens of thousands of patents related to computer programs. For example, in the Auction Method/Hitachi case, the Boards of Appeal of the European Patent Office (BAEPO) considered whether an automated auction system constituted patentable subject matter under Article 52 of the EPC. The BAEPO concluded that the system was a patentable invention because it encompassed technical features such as a network, server computer, and client computers. In a later decision known as The Duns Licensing Case, the BAEPO reaffirmed this approach and approved a business method for estimating sales and product distribution in situations with limited data as patentable under the EPC. Through these and other cases, the BAEPO established a pattern of identifying a physical feature of a patent claim and using that feature to conclude the claim had technical character and thus a patentable invention under Article 52. Japanese patent law resembles E.U. patent law in many respects. Whereas inventions under European law must be \"susceptible to industrial application,\" Japanese patent law Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 452 Part 4: Regulatory, Compliance and Liability Issues requires an invention be \"industrially applicable.\" Although Japan has drafted guidelines that prohibit patents for business methods, it permits patenting of software or computerimplemented business methods that involve the \"creation of technical ideas.\" In short, whereas Europe and Japan have recognized business method patents for technical and computer-implemented methods, only the United States has accepted business methods for nontechnical or computer-related patent applications. In China, the standing practice of their patent office has been to allow business method patents for computer- or software-related activities. Applicants are not routinely granted, however, and must be implemented through computer or network technologies (not just software alone), solve technical problems, be novel and inventive, and be capable of repeated application. For example, Citibank obtained two business method patents related to money management systems. Amazon has filed 12 patent applications in China, all of which are still pending. Extraterritorial Enforcement of Business Method Patents The conflicting view of business method patents worldwide presents significant obstacles for United States businesses. A prospective patentee must disclose information about the patent in the application. That information may be used by foreign competitions to duplicate the invention in nations where such patents are not recognized. The most obvious choice for enforcing business method patents is to bring suit in the United States against the infringing party. Section 402(1)(c) of the Restatement of Foreign Relations states that a country has \"jurisdiction to prescribe law with respect to ...conduct outside its territory that has or has intended to have a substantial effect within its territory.\" Infringement of a business method patent on foreign soil through a cyberspace or real-world medium could arguably constitute a \"substantial effect\" within U.