[AfrICANN-discuss] On MAURITIUS COMPUTER MISUSE AND CYBERCRIME ACT 2003 and MOROCCAN COPYRIGHT LAW

[Anne-Rachel Inné]

MAURITIUS COMPUTER MISUSE AND CYBERCRIME ACT 2003

Kelly O'Connell, Miami Attorney          Email

Mauritius is an island located in the Atlantic near Southern Africa, in the
Indian Ocean, east of Madagascar. It was first explored by Portuguese
sailors in the early in the 16th century. Later it was controlled by the
Dutch, French, and British until independence was achieved in 1968. Given
its inherent limitations of history, location, and natural resources, the
country has developed into an unmitigated success, by anyone's standard.


The Government carefully assembled the infrastructure for a large,
state-of-the-art cyber complex in the early 2000's which should prove
attractive to any company wishing for access to the Asian continent within a
business-friendly and highly modernized infrastructure. This law is an
attempt to protect any foreign or local businesses setting up shop there.



To better understand the Computer Misuse and Cybercrime Act 2003; Act No. 22
of 2003; Offense, found in Part II, these questions will be answered: What
is "Unauthorized Access to Computer Data"? What is "Access with Intent to
Commit Offences," or "Unauthorized Password Disclosure"? What is
"Unauthorized Access to and Interception of Computer Service"? What is
"Unauthorized Modification of Computer Material", or "Damaging or Denying
Access to Computer System"? What is "Unlawful Possession of Devices and
Data" or "Electronic Fraud"?



Mauritius island state has staged an impressive economic evolution, based
upon its stable democracy, featuring a British system of regular free
elections and a positive human rights record, as the markets transition from
agriculture to building the industrial, financial, and tourist sectors. The
country has attracted considerable foreign direct investments, earning one
of Africa's highest average incomes, per annum. The population is about one
and a quarter million within a land mass about ten times the size of
Washington, DC. A serious approach to property laws, in general, and
Intellectual Property laws specifically, is a major reason this well-ordered
economy thrives.



What is "Unauthorized Access to Computer Data"?

This occurs when a person causes a computer to "perform a function," ie,
enters with the intent of a going into a computer system to have
unauthorized access. Here, "Unauthorized" means either lacking general
authority to enter a system, or without specific consent of the owner of the
equipment. The law does not differentiate whether the person had intent to
go after specific data or programming, or whether he was simply accessing
the device with a general intent to enter, without any firm goal in mind
beyond that. Those convicted of this crime will be fined 50,000 rupees
and/or be sentenced to "penal servitude" for no more than 5 years. The act
allows for a defense of a "reasonable belief" of consent or authority. (Part
II, Section 3)



What is "Access with Intent to Commit Offences," or "Unauthorized Password
Disclosure"?





"Access with Intent to Commit Offences" occurs when a person causes a
computer system to do an act for the purpose of accessing any program or
data found within a computer system, with intent to commit any crimes listed
under the rest of this same Act. It is deemed irrelevant whether the initial
access was authorized, or unauthorized; or whether the crime occurred at the
same time, or at some period later. Those convicted of this crime will be
fined not exceeding 200,000 rupees, and/or incarcerated not to exceed 20
years. (Part II, Section 4.)



"Unauthorized Password Disclosure" happens if anyone "knowingly discloses
any password, access code, or any other means of gaining access to any
program or data held in any computer system" to commit a crime of theft, to
damage files, or defame another, If convicted of this crime, the person will
be fined 50,000 rupees and/or incarcerated not exceeding 5 years. (Part II,
Section 8.)



What is "Unauthorized Access to and Interception of Computer Service"?

This occurs when anyone purposefully, and without permission or authority,
breaches a computer system for the end of obtaining computer service to
intercepts "any function of, or any data within a computer system." Those
convicted of this crime will be fined not exceeding 100,000 rupees and/or
incarcerated not to exceed 10 years.



If such an act impairs or compromises the function of a computer system,
including disruption or excision of data delivery, Those convicted of this
crime will be fined not exceeding 200,000 rupees and/or incarcerated not
exceeding 20 years. It is irrelevant if the breacher's intent was to harm
the system or disrupt the flow of data. (Part II, Section 5.)



What is "Unauthorized Modification of Computer Material", or "Damaging or
Denying Access to Computer System"?



This occurs when anyone purposefully acts to cause an "unauthorized
modification of data held in any computer system." Those convicted of this
crime will be fined not exceeding 100,000 rupees and/or incarcerated not
exceeding 10 years.



If such an act suppresses the system or modifies data, those convicted of
this crime will be fined not exceeding 200,000 rupees and/or incarcerated
not exceeding 20 years.



A "modification" is illegal if the person doing so "is not himself entitled
to determine whether the modification should be made;" and has done so
beyond the scope of authority, or without permission. It is irrelevant if
the damage or modification is temporary or permanent. (Part II, Section 6.)



"Damaging or Denying Access to Computer System" is when any person who,
without consent or authority, causes "degradation, failure, interruption or
obstruction of the operation of a computer system; or denial of access to,
or impairment of any program or data storage," those convicted of this crime
will be fined not exceeding 200,000 rupees and/or incarcerated not exceeding
20 years. (Part II, Section 7.)

What is "Unlawful Possession of Devices and Data" or "Electronic Fraud"?



This occurs when anyone "manufactures, sells, procures for use, imports,
distributes or otherwise makes available, a computer system or any other
device, designed or adapted primarily for the purpose of committing any
offence" under this Act. Also, to have such a computer program in
possession, is likewise a crime, unless with excuse or justification. Those
convicted of this crime will be fined not exceeding 50,000 rupees and/or
incarcerated not exceeding 5 years. (Part II, Section 9.)



"Electronic Fraud" occurs when anyone "fraudulently causes loss of property"
to another by "any input, alteration, deletion or suppression of data;" or
interfering with a computer system, with intent to commit this crime. Those
convicted of this crime will be fined not exceeding 200,000 rupees and/or
incarcerated not exceeding 20 years. (Part II, Section 1)



MOROCCAN COPYRIGHT LAW

Kelly O'Connell, Miami Attorney          Email

Morocco has a rich French legal history, which included European
intellectual property law. The French law was set aside to make way for the
global economy represented by World Intellectual Property Organization,
which Morocco assented to the standards of, first in the Agreement on
Trade-Related Aspects of Intellectual Property, or TRIPS Agreement; and
then, in the Law No. 2-00 on Copyright and Related Rights of February 15,
2000. That Moroccan law is still influenced by the old dahirs (laws).



To better understand Moroccan Copyright law, these questions will be
addressed: What are Copyright Protected Works, What are Their Conditions?
What Are Some Unusual Aspects of Moroccan Copyright Law? How Does Copyright
Ownership Work? What are the Formalities and Documentation for Moroccan
Copyright? Does the Law Treat as Special Moroccan National Folkways?



History of Moroccan Copyright Law:



Morocco, like the rest of the Muslim world, did not have a strong history of
protecting Intellectual Property (IP) rights. In fact, until the 20th
century, the concept was foreign to the law of this country. Morocco did
have better IP rights than neighbors since it accessed French laws on the
topic, resulting in the dahirs of 1916 and 1970, although application of
these standards was hardly uniform.



Morocco decided to set aside the old French model and strive for a global
model after it chose to attempt to become a member of the World Intellectual
Property Organization (WIPO). This represented a bold, non-typical deviation
from the colonial model when they rejected the regional model to pursue
membership in 1993 (Morocco also attempted to become an early member of the
European Union, but were rejected out of hand for not technically being a
European state). The Government was given guidelines to follow, such as
ratifying the Agreement on Trade-Related Aspects of Intellectual Property,
or TRIPS Agreement. This transformed the intellectual property thinking in
the state as Morocco struggled to bring their legislation and regulations in
agreement with international standards and procedures.



Morocco, was classed a "developing country" and signed the TRIPS Agreement,
and was given a deadline of the year 2000 to redraft its IP legislation to
meet WIPO standards. This explains why the new IP law was passed when it
was, yielding Morocco Law No. 2-00 on Copyright and Related Rights of
February 15, 2000 was signed into effect.



What are Copyright Protected Works, What are Their Conditions?

"Protected work" in the Moroccan Copyright Law of 2000 are too numerous to
list, but Morocco accepts the Berne Convention, which does have a long, but
incomplete listing.



Protected works presume several characteristics. First, the work being
protected must be an "original", which is not a well-developed definition in
the Moroccan Copyright Law of 2000. The old 1970 dahir and French law in
general define an original as "when its characteristic features and its
form, or its form alone, make possible the identification of its author."
The new law refers to "originality" as "works that are original intellectual
creations in the literary and artistic field." The test for originality,
then, will be one of a common sense persuasion through examples and proofs.



Second, the work cannot be simply an idea, but an original idea that has
been worked-up into some sort of model. Third, there must be an author. This
means, according to the law in Article 47, is the person who is shown, via
"display on each of the copies the name, pseudonym or mark of the author."
Therefore, a model work with a name on it, were it unique, would translate
to authorship, and all rights accrued therein, as explained in Article 38.
An anonymous, pseudonimical or unknown work is "authored" by the publisher
of such.



What Are Some Unusual Aspects of Moroccan Copyright Law?

While not completely unique, Moroccan copyright law follows the French, as
opposed to U.S. standard, and does not require copyrighted articles be fixed
on material support for copyright. This is undoubtedly to help preserve
Moroccan folksongs as IP.



Also, the 2000 Copyright law does not recognize "compilations", again unlike
its U.S. counterpart. This has created an interesting situation where
computer databases are not treated typically within the 2000 law, but case
law (Coprosa decision) and legislation (1985 law) developed to grant
databanks original protection, and to help with this void, given as a 'right
of extraction and reuse', although the protection has not gone beyond 15
years. Databases are classed derivative works, in Article 5(b), but with no
details as to scope and term of the protection.



How Does Copyright Ownership Work?

In Article 1, paragraph (1), the new law states an author of a work is "the
natural person who created the work," and "He or she is the first owner of
the moral and economic right in the work," according to Article 31. Proof is
that "his or her name appears visibly on the work," according to Article 38.
Yet this name, according to Article 1, paragraph (1), might not be the real
author or person who commissioned it. The law only applies to "real
persons," not legal entities -- although the case law disagrees with this
point -- and protection lasts a lifetime plus fifty years, according to
(Article 26).



What are the Formalities and Documentation for Moroccan Copyright?

Formalities:



For Copyright registration formalities, and unlike U.S. copyright, the
Moroccan Copyright Law of 2000 and the decree of 8 March 1965 do not gave a
particular manner of registering copyright or an stipulation to deposit of
works. While there is a stipulation in the dahir of 7 October 1932 that says
four copies of any work produced in number and put in circulation on
Moroccan territory26 must be deposited with the General Library and Archives
(BGA) in Rabat. Strangely, this rule has no relation to copyright, since
this is registered nowhere else. The Moroccan Copyright Office relies upon a
procedure of declaration and the admissibility of such on the Report of the
Authentification Commission to then accept them.



Documentation:



Again, for Moroccan texts, there is no documentary evidence needed to attest
to authorship of a work, or any body set up for such a purpose. But the
dahir of 7 October 1932 stipulates that on legal deposit, when a work is put
into circulation in Morocco, four copies shall be handed over to the BGA,
and a formal document is then issued in return. The article gives the name
and status of the author referring to 'claims', not unlike copyright forms
of the American and Canadian Copyright Offices. But Article 12 of the dahir
of 7 October 1932 does not create copyright, nor constitute any kind of
certificate of ownership, or a defensible certificate of entitlement
regarding such rights.



Does the Law Treat as Special Moroccan National Folkways?

Yes. Morocco has an extremely rich cultural heritage, expressed in dance,
song, and art. The old dahirs protected these works, naming indigenous art
and invention as, "folklore", being "unpublished works where the identity of
the author is unknown but where there is every ground to presume that he is
or was a Moroccan national," according to dahir 29 of the 1970 code. Article
7, "Protection of Expressions of Folklore" makes the fixing of folklore
works under approval of the Moroccan Copyright Bureau.
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