Wednesday, July 26, 2006
Mad World
In an age where consumerism is fast becoming a religion by itself, where one has a hard time keeping pace with the steep rise of technology; it's getting harder and harder to come clean and deny having used, in one way or another, this very same technology to violate another person's rights or at least further one's interest over another.
The world that is the internet, for instance, provides an avenue for a plethora of things one could do wherein one is able to affect, or at least look in to, the life of another human being, simply by a few mouse clicks and/or typed words.
There are the ever-popular Friendster and Myspace, which many consider to be a stalker's dream put to life. Simply by subscribing to their services, one could have an idea of the world of this other person whom we've come to know only by name or by his/her email address. Sure, there are restrictions available to a given user. But very few actually make use of them. Indeed, they do tend to defeat the purpose of joining such a community.
There is peer-to-peer transactions made possible by softwares like edonkey, KazaA, eMule and Limewire. This goes to include those applications making use of bit-torrent technology. These online exchanges of data are probably the fastest, most convenient way to send one's work across the globe at the least cost possible. Many of the entertainment bigwigs are naturally opposed to this. They are losing billions, they say, in revenue because of the huge advantage this technology provides to pirates and copyright terrorists.
We have the password and serial number providers. The Net is dotted with sites that provide serial numbers and/or passwords for restricted internet sites or softwares. What motivation is there left for a person contemplating on purchasing an authentic PC game or utility application?
These are but some of the realities out there that we are forced to deal with right now. They may not appear to be all that daunting --- at least not yet --- but I surmise they would be in the very near future.
How does one resist the urge? The temptation to do something which, in all likelihood, is probably not the most law-abiding thing to do? Is there need to reassess one's morals? Or are we justified in 'fighting back' against what Marx referred to as the world's owners of the modes of production, by completely disregarding their ability to earn income?
The lines have been drawn in some areas. But they are oftentimes still blurred, and rather confusing.
The thing about it though is that no one appears to be in a hurry to remedy this. At least there is no significant number.
But we're not complaining. No. Not just yet.
The world that is the internet, for instance, provides an avenue for a plethora of things one could do wherein one is able to affect, or at least look in to, the life of another human being, simply by a few mouse clicks and/or typed words.
There are the ever-popular Friendster and Myspace, which many consider to be a stalker's dream put to life. Simply by subscribing to their services, one could have an idea of the world of this other person whom we've come to know only by name or by his/her email address. Sure, there are restrictions available to a given user. But very few actually make use of them. Indeed, they do tend to defeat the purpose of joining such a community.
There is peer-to-peer transactions made possible by softwares like edonkey, KazaA, eMule and Limewire. This goes to include those applications making use of bit-torrent technology. These online exchanges of data are probably the fastest, most convenient way to send one's work across the globe at the least cost possible. Many of the entertainment bigwigs are naturally opposed to this. They are losing billions, they say, in revenue because of the huge advantage this technology provides to pirates and copyright terrorists.
We have the password and serial number providers. The Net is dotted with sites that provide serial numbers and/or passwords for restricted internet sites or softwares. What motivation is there left for a person contemplating on purchasing an authentic PC game or utility application?
These are but some of the realities out there that we are forced to deal with right now. They may not appear to be all that daunting --- at least not yet --- but I surmise they would be in the very near future.
How does one resist the urge? The temptation to do something which, in all likelihood, is probably not the most law-abiding thing to do? Is there need to reassess one's morals? Or are we justified in 'fighting back' against what Marx referred to as the world's owners of the modes of production, by completely disregarding their ability to earn income?
The lines have been drawn in some areas. But they are oftentimes still blurred, and rather confusing.
The thing about it though is that no one appears to be in a hurry to remedy this. At least there is no significant number.
But we're not complaining. No. Not just yet.
Tuesday, July 04, 2006
A Whole Lot of Sense?
Sec. 37 of the E-Commerce Act reads: Statutory Interpretation. Unless otherwise expressly provided for, the interpretation of this Act shall give due regard to its international origin and the need to promote uniformity in its application and the observance of good faith in international trade relations. The generally accepted principles of international law and convention on electronic commerce shall likewise be considered.
Simply put, whenever a situation arises wherein one or any provision of the Act is to be interpreted or given meaning, one always has to remember that:
The Act has an international origin.
Our E-Commerce Act was patterned from the UNCITRAL (United Nations Commission on International Trade Law) Model Law on Electronic Commerce, which was adopted in 1996. This Model Law is intended to facilitate the use of modern means of communications and storage of information. Accordingly, anyone tasked to interpret the Act would do well to consider the Model Law and the policy considerations behind it.
The Act conforms to the Model Law
No provision should be read or understood in such a manner as to deviate from or contradict its international counterpart, in the form of the Model Law. Of what use would it be to have an international Model Law, and have conflicting domestic laws patterned after it? To provide a model, after all, is to set an example.
The Act recognizes the importance of good faith in international trade relations.
In making sense of a provision, one must always remember that one of, if not the, primary purpose of the Model Law to which the Act was taken after, is the facilitation of paperless communications and commerce. Business and commercial transactions then being focal considerations, it follows that good faith itself, as a necessary element in any business relation must likewise be given weight. No interpretation that would do away with this basic requisite shall be allowed.
The Act was formulated having in mind the generally accepted principles of international law and the convention on electronic commerce
What could possibly be these principles be, one is prone to ask. The following excerpt would be most helpful:
As to the general principles on which the Model Law is based, the following non-exhaustive list may be considered: (1) to facilitate electronic commerce among and within nations; (2) to validate transactions entered into by means of new information technologies; (3) to promote and encourage the implementation of new information technologies; (4) to promote the uniformity of law; and (5) to support commercial practice. While the general purpose of the Model Law is to facilitate the use of electronic means of communication, it should not be construed in any way as imposing their use. (Guide to the Enactment of the UNCITRAL Model Law on E-commerce).
NOTE
Much like its more “conventional” peers (read: non-techie laws) which are, more often than not, also borrowed from foreign sources, the E-Commerce Act, given this provision, already suffers from a handicap right from the get-go --- its applicability to local settings.
While it is true that time seems to blur away more and more borders between states, it cannot be denied that there would still be major differences in terms of the prevailing conditions (specifically, in technological advances) and pre-existing cultural elements between countries. Given this, would not putting more emphasis on uniformity somehow restrict the law insofar as adaptability is concerned? In our preoccupation to make the Model Law succeed, as a whole, wouldn’t its local offspring suffer when it is sought to be applied here, where not all conditions present when the framers of the Model Law, can be similarly found?
We seem to think so.
