Curbing Software Piracy in eCommerce: Compatibility with Human Rights: Challenges and Possible Solutions

Abstract

Software and eCommerce are inseparable part of each other. The main thrust of the thesis is to discover a suitable legal and technological measures for curbing software in eCommerce and find out compatibility of the existing curbing measures with human rights. The WIPO Copyright treaty, the Berne Convention, the TRIPS Agreement and other international laws on copyright, patent and software have been discussed in relevant places. Information and statements from the papers prepared by WIPO on digital right management, eCommerce, and copyright have been frequently used in the thesis with proper citation. Since the U.S.A is the pioneer in the software industry and eCommerce therefore particular attention has been given on the U.S. legal system. A considerable number of relevant cases from the U.S. jurisdiction have been discussed in relevant chapters of the thesis. The European law and British law also have been discussed with limited number of case references. Since Bangladesh is a developing country&semic the relevant copyright law of Bangladesh and its prospect in software industry also has been discussed briefly. The thesis is divided in 7 chapters. A summary of each chapter has been given below. Chapter 1: Introduction: It contains a brief introduction of the issues discussed in the thesis and explanations regarding software, eCommerce, kinds of software infringements, gravity and consequence of software piracy in eCommerce, permitted actions in respect of software, jurisdiction, choice of law and enforcement issues etc. Chapter 2: Internet Piracy a Grave Challenge: In this chapter how Internet piracy of software takes place is explained with example and case reference from the U.S. jurisdiction. Chapter 3: Software Patenting vis-a-vis Copyright: A comparative discussion between software patenting and copyright protection for software takes place in this chapter. The relevant laws of the U.S. jurisdiction and European jurisdiction have been discussed with important case references of the respective jurisdiction. It is also discussed whether these two types of protection for software are conflicting or complementary. Chapter 4: Regulatory Framework for Curbing Piracy: In this chapter basically copyright law relating to software has been discussed. Relevant provisions regarding software from international copyright Law like the Berne Convention, WIPO Copyright Treaty, and TRIPS Agreement have been cited. EC Software Directive, Copyright Directive and eCommerce Directive, Statutory law and case law of the U.S. jurisdiction, the UK jurisdiction have been discussed here. Chapter 5: Technological Protection Measures: Technological protection measure in Australia, anti circumvention provision in WIPO Copyright Treaty, Digital Millennium Copyright Act (DMCA) of the U.S.A., Limitations and exceptions of DMCA, EC Copyright Directive and limitations and exceptions of the Copyright Directive, Rights management information etc. have been discussed. Chapter 6: Compatible Human Rights: What are the bases of the relationship between IPR and human rights, which provisions of the relevant international IP law and different national jurisdictions are upholding human rights have been discussed here. Relevant case law has been cited from the U.S. jurisdiction to show that the court did not find the anti circumvention provisions of the DMCA unconstitutional and opposed to the right to freedom of expression. It has been shown in this chapter that there is no real conflict between human rights like freedom of expression and curbing measures of software piracy in eCommerce. Chapter 7: Conclusion and Recommendations: Concluding comments and Specific recommendations have been given to curb software piracy in eCommerce and develop human rights values in IPR protection.