Cybersquatting
Cybersquatting is the practice of registering well-known corporate names and other trademarks as domain names to attract innocent consumers to use the cybersquatter’s products and services, or to abuse the corporate name or brand of the holder at issue, or for the purpose of selling the domain names to the original owners at high prices. Cybersquatting causes great damage to businesses and consumers. It is likely to restrain the development of e-commerce.

The UAE Trade Mark Law No. 37 of 1992 has no provision to counter such illegal acts nor have the new Dubai Laws No.5 of 2001 and No.2 of 2002 mentioned above. However,a draft Law that tackles ‘cyber crimes’ was recently prepared by the General Information Authority and proposed to the Ministry of Justice. The draft Law consists of 36 articles to deal with cyber crimes, including cybersquatting and expected to be passed soon. This is a step in the right direction. Cases of such individuals involved in such online fraudulent practices do not pose a serious problem in the UAE. However, security experts in the UAE have been quoted in the local press as saying that online activities have not yet been streamlined in a legislative manner, and remain subject to traditional commercial practices, which in general, do not tally with electronic presentations.

In the UAE, which has been assigned the ‘ae’ country code top-level domain (aeTLD), a registration policy was placed by the UAE Network Information Center (UAENIC) being the only authority for registering a domain name under the aeTLD and acting as a central registry for all second level domain name registrations. Only companies and organizations located in the UAE are eligible to apply for a domain name with the UAENIC. A foreign company which is registering a domain name under .ae is only eligible when it has a local representative in the country and this has to be supported with a written certification coming from the local representative. The application has to be submitted by the local representative on behalf of the foreign company. The domain names must reflect the name of the organizations applying for the domain names, or one of its registered trademarks. Modifying or deleting a domain name is free of charge.

The UAENIC was established before the start of Internet services in the UAE by Emirates Internet and Multimedia in August 1995, and it registers domain names in six categories - .co.ae (for commercial entities), .gov.ae (for government entities), .net.ae (network providers), .org.ae (non-profit entities), .sch.ae (schools) and .ac.ae (colleges and universities). Recently, UAENIC decided to stop registering .co.ae domains and to register .ae domains instead. Registration of a domain name with UAENIC for the first time is AED250, and the yearly fee is AED200. The website for the UAENIC is located at: www.uaenic.ae

One of the objectives of the UAENIC policy is a general provision (UAE NIC Policy 1.4) designed to prevent domain names from infringing upon other parties’ trademarks whereby the party requesting a domain name must certify that, to their knowledge, the use of this domain name does not violate a registered trademark. However, the UAENIC policy has no specific guidelines to follow nor procedures to be adopted in case of conflicts over domain names. Rather, UAENIC retains the right to cancel any domain name registration that is contrary to its policy including those which violate trademarks. However, the policy of UAENIC does not establish the procedure for cancellation or any procedure for challenging a domain name registration by an affected party. This mechanism should also be subject to review by a judicial or administrative body by virtue of a provision of law.

The Anticybersquatting Consumer Protection Act (ACPA) passed as law in the United States on 29 November 1999 is a good example of an international initiative in this respect. The ACPA prohibits the bad faith registration of, trafficking in, or use of, a domain name that (1) is a registered trademark, (2) is identical or confusingly similar to a distinctive mark, or (3) is identical to, confusingly similar to, or dilutive of a famous mark. The ACPA also allows a trademark holder to bring a claim against the Internet names themselves and not just the individual cybersquatter. This helps in overcoming the problem of locating and exercising jurisdiction over cybersquatters.

To handle disputes world-wide, the Uniform Domain Name Dispute Resolution Policy (UDRP) was developed and adopted by the Internet Corporation of Assigned Names and Numbers (ICANN), the private non-profit corporation that manages the domain name system. This policy applies to all .com, .net and .org domain names. To lodge a complaint successfully, the complainant needs to establish the following:

A) the domain name is identical or confusingly similar to its trademark or service mark; and

B) the registrant of the domain name has no rights or legitimate interests in the name; and

C) the domain name was registered and is being used in bad faith.

UDRP has been widely used in many cases to resolve domain name disputes worldwide.

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Piracy
Traditionally, software piracy was unauthorized copying, installation or physical distribution of floppy discs and CDs. The Internet, however, has evolved software piracy by allowing electronic sales and transmission of illegal software in intangible form and on a global basis.

Although the UAE Ministry of Information has taken significant steps in reducing software piracy and counterfeiting by resellers and corporate end-users, the UAE Copyright Law No. 40 of 1992 did not anticipate and so did not adequately address the particular issues raised by Internet piracy. The UAE should sign and ratify the World Intellectual Property Organisation (WIPO) Copyright Treaty. This treaty tries to ensure that traditional copyright principles apply in the digital electronic environment.

Among other provisions, the Treaty states that the right holder’s right to make copies applies to the digital environment and includes the exclusive right to store digital works in any electronic medium. This means that temporary reproductions, including those that take place in a computer’s random-access memory (RAM), are protected under copyright. The Treaty further provides that authors have a ‘right of communication to the public’, which includes protection for most forms of online distribution of their works. Accordingly, pirates henceforth would no longer be able to upload a legal copy of software onto a server and allow others to download illegal copies.

There are many sites on the Internet today offering pirated software. These sites are flagrant violations and a search for the words ‘warez’ or ‘appz’ will reveal over two million such sites.

Although the UAE has fully ratified the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which is one of the main agreements of the World Trade Organisation (WTO), it is not a party to the Berne Convention for the Protection of Literary and Artistic Works (1971). However, the UAE is bound by the provisions of the Berne Convention as the TRIPS Agreement provides that members of the WTO must adhere to the provisions of the Berne Convention.

In its continuing crackdown on software, video game, motion picture and other piracy in the United Arab Emirates (UAE), the Ministry of Information and Culture and the police have regularly conducted raids against infringing companies and seized personal computers and illegally-copied games, software, video tapes, and CDs. The raids have led to convictions and increasingly higher and higher fines. The UAE's continued and persistent efforts to enforce copyright law and protect copyright holders have been globally recognized, and the UAE's software business has increased dramatically as a result. One raid resulted in a cache or consignment of 200,000 pirated CDs being seized.

In March 2000, a criminal action in the UAE was brought against a dealer for illegally copying satellite pay-television smart cards. This card provided access without a subscription payment to pay-television channels that are encrypted and may only be accessed by subscription with a smart card. The UAE court convicted the dealer for violating the UAE Copyright Law No. 40 of 1992. The court ordered him to pay a fine in the amount of Dhs50,000. The dealer was also sentenced to one month in prison, following which he is to be deported from the country.

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Software Protection
Traditionally and historically, software was protected under copyright laws of countries. With the evolution of the software industry, computer programmers found it desirable to protect their software creations by obtaining patents on the process or algorithm of the software. This means stronger and broader protection to software-makers where they would enjoy the right to prevent other subsequent makers from producing software that follows the same process, even though it has a different code. Traditional means of protection should be extended to provide for the changes in the IT industry. However, there is an ongoing debate in other countries about whether or not software should be patentable. Furthermore, the U.S. currently allows the patenting of software, while the U.K., however, recently staked its position remaining consistent with the emerging consensus in Europe and deciding against granting software patents. But as the innovation gap between the U.S. and Europe narrows, and as European software developers become more competitive, there is a substantial chance that the European approach will evolve in favor of software patents.

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Electronic Publishing
Although the UAE Copyright Law No. 40 of 1992 provides a definition for ‘publication’ of copyrighted works, this definition does not specifically cover publication on the Internet. Nevertheless, since it is broadly defined, it can be interpreted to cover publication online. The UAE Copyright Law No. 40 outlines the kinds of works that can and cannot enjoy the protection under the above-mentioned Law. A website provider that intends to use third-party content on its website should keep in mind that permission from the third party content provider is required only for the kinds of works which enjoy copyright protection.

Some website providers exploit the software used for a website by licensing the software to third parties. Generally, under existing UAE laws, the licensee cannot exploit the licensed software by making it available to third parties without the licensor’s permission. This rule is also applicable to website providers.

The UAE Copyright Law No. 40 of 1992 did not anticipate and so did not adequately address the particular issues raised by Internet piracy. The UAE has not yet signed and ratified the World Intellectual Property Organization (WIPO) Copyright Treaty. Finally, no provisions under the current laws regulate the issue of liabilities incurred by links to third-party websites.

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