[AfrICANN-discuss] On MAURITIUS COMPUTER MISUSE AND CYBERCRIME
ACT 2003 and MOROCCAN COPYRIGHT LAW
elsacaposso at yahoo.com
Tue Nov 13 12:02:19 SAST 2007
I would like to ask you to include my collegue on the ICANN mailing list
because he belongs to international relations.
here is his email Bartolomeu Milton bartolomeumilton at yahoo.it
----- Original Message ----
From: Anne-Rachel Inné <annerachel at gmail.com>
To: africann at afrinic.net
Cc: Me SARR Abdou Abbas <sarr.abdou at sarr-allard.com>
Sent: Thursday, November 8, 2007 1:56:45 PM
Subject: [AfrICANN-discuss] On MAURITIUS COMPUTER MISUSE AND CYBERCRIME ACT 2003 and MOROCCAN COPYRIGHT LAW
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?
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.
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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