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IPR INFRINGEMENT IN CYBERSPACE: TECHNICAL AND LEGAL OPTIONS FOR POLICY MAKERS FACING NEW CHALLENGES Background reading: Perspectives on Policy Responses to Online Copyright Infringement – An Evolving Policy Landscape (available via http://isoc.org/wp/newsletter/?p=3530). Some Proposed Guidelines for developing a modern policy framework for the enforcement of Intellectual Property Rights (IPR) on the Internet The following are some proposed guiding principles to aid development of an African legal framework that ensures an appropriate balance between the need to foster an innovative digital market and the need to protect IPR online: • Effective enforcement of IPR online requires a multi-pronged approach: - robust and holistic examination of the motives behind infringement and shortcomings in traditional means of enforcement; - readily accessible and understandable information about what activity is legal and what is illegal; - general and specific education for Internet users concerning IPR in the online environment; - viable legal alternatives that are well known and easy to use; - fair and proportionate enforcement measures; and - international consistency and cooperation. Enforcement measures should target behaviour not technology: they should be technologically neutral. IPR infringement existed before the Internet. Only if existing enforcement measures prove inadequate should new ones be considered for online infringement. Internet intermediaries should not be made into de facto law enforcement agents: they should not be required to determine when conduct is illegal and due process must be maintained. Laws should not be used to freeze existing business models: they should nurture innovation and creativity. Explore a stepped enforcement procedure with an educative element that ensures: - methods used for detection of infringement and identification of infringers are reliable, accurate and carried out in a privacy-respecting manner; - stringent data protection rules and security; - the procedure: ! is linguistically, socially, culturally and economically appropriate; ! does not unreasonably interfere with the business or activities of third parties; ! does not diminish innovation and development of the Internet, Internet technologies and the spread of Internet access; ! is applied to proven, not suspected, infringement.

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any sanctions are proportionate, fair, appropriate, and are applied with due process by an independent suitably qualified third party.

Before considering implementation of any enforcement procedure, closely examine: - the financial and other costs, including indirect costs, to Internet intermediaries and other parties; - the impact on the Internet and Internet technologies.

Key recommendations Multi-stakeholder participation: All relevant stakeholders should be afforded reasonable and early opportunities to contribute to the development of policies and legal frameworks concerning the Internet and Intellectual Property Rights. A continental approach: Member states, working together with other stakeholders, could consider developing a continental multi-stakeholder framework for knowledge-sharing and policy development concerning the Internet and Intellectual Property Rights in Africa.

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