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How do I sign a contract electronically? Is an electronic signature as binding as a written signature?
The majority of countries recognize that it is perfectly valid to sign a contract electronically, especially when this occurs in a closed electronic system, such as an Electronic Data Interchange (EDI) system. Today, in practice, the digital signature (a process based on public key cryptology) is the most frequently used technology for electronic signatures. This technology, as well as being the most widespread, is also the most secure. It allows signatories to be identified by recipients through the intervention of a trusted third party, known as the Certification Authority (C.A.). The technology involves the signatory generating a pair of asymmetrical digital keys: a private key which is kept secret between the signatory and the C.A. and a public key, which, as the name indicates, allows a recipient to verify through the C.A. that the signature has actually come from the person identified with the private key. The C.A. creates a digital identification certificate which establishes a link between the person of the signatory and his pair of keys so that the signatory cannot later disclaim the signature. This certificate is signed by the Certification Authority. The signature consists of an encrypted message of the kind normally used in real signatures, which is attached or logically joined to the main message. The intervention of a third party is indispensable in establishing confidence and security in electronic exchanges, since the contracting parties are never physically present to sign. The development of eCommerce relies, to a large extent, on the trust and security that users feel in electronic communications. Applications related to or requiring electronic signatures are numerous, for example: payments of contracts, administrative declarations, procurement operations, etc. Since 1981, the Council of Europe, and, as of 1985, the United Nations Commission on International Trade Law (UNCITRAL), have been recommending countries to take all necessary measures to eliminate legal requirements imposing paper-based documents and handwritten signatures to the detriment of their data-processing or electronic equivalents. Article 7 of UNCITRAL's Model Law on Electronic Commerce of 1996 specifies that: "Where the law requires a signature of a person, that requirement is met in relation to a data message if a method is used to identify that person and to indicate that person's approval of the information contained in the data message; and that method is as reliable as was appropriate for the purpose for which the data message was generated or communicated, in the light of all the circumstances including any relevant agreement." The above applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the absence of signature.
How can I guarantee that the terms I agree upon electronically are those I actually see on my computer (i.e., those that the other party has issued on his or her side)?
To our knowledge, there is no absolute guarantee, from a technical point of view, allowing for certainty that what one party sees on its computer screen is identical to what was issued by the other party on its site. Each web browser has its own way of reading pages written in HTML language on any given web site that is visited. Moreover, as the sources of word processing software (market standards) are not freely accessible, macrocommands could be implemented in a file, marking the contract which one intends to sign: hence the signed text may not be the one which has been examined on the screen. The only method which would appear to give some guarantees in this respect consists of the labeling of the site by a third, independent organization (e.g., an auditor, a Chamber of Commerce, etc.). If the web site does not have a label, it is advisable to carry out, before each transaction, a capture of the page on the screen (generally, any purchase orders to be filled in by the buyer are in standard form) and to print out the form in order to have evidence in the event of litigation.
How can I protect my business, my brand name, my domain name, or published material from being copied on the Web?
You should be aware that some matters are not protected by patent or copyright laws. These are know-how, commercial secrets, and ideas (i.e. ideas are for free development). The above are difficult to protect, except by means of a confidentiality agreement. It is necessary to have such a contract to prevent any collaborators, partners, subcontractors, customers, etc., from exploiting ideas that a company wishes to protect. In practice, protection is ensured by undertakings of confidentiality and non-competition clauses in contracts, and penalty clauses in the event of any violation of the agreement. In addition, several countries provide certain facilities; for example, the possibility to deposit a sealed, date-stamped envelope containing details of a trade secret at the national industrial property institute, or to deposit such secrets with a third party using a logibox (for example, the source code of software and its digital support), which, although conferring no right (except that of a possible anteriority), will allow the bad faith of a plagiarist to be shown. The laws of most countries protect brand names (trademarks) when they are distinctive and nonfraudulent. Protection for trademarks is usually obtained through registration in a government office. The minimum period of protection for trademarks under the World Trade Organization's Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement is seven years from the date of initial registration. Registration is renewable indefinitely. A brand name can also be deposited for registration at the international level with the World Intellectual Property Organization (WIPO). Protection of the brand will then last 20 years in the member states of the Madrid Agreement. In Europe, the business community can file to register a European trademark under the European Council's EC Regulation n° 40-94 of 20 December 1993. The protected trademark can cover one or more classes of products, and its holder has the right of ownership. It should be noted that a design can be protected by both copyright and trademark laws at the same time. Manifestly known brand names, even if they are not the subject of an application for registration, are protected. The illegal copying of a trademark can be the subject of an infringement proceeding. The illegal registration of a brand name counterfeiting an existing trademark can be the subject of an action in cancellation or of an action in claim to determine the rightful owner of the trademark.
How do I protect my domain name?
The awarding and registration of a domain name for your web site is carried out by organizations that have been delegated this responsibility by the Internet Corporation for Assigned Names and Numbers (ICANN). They include: InterNIC (Internet National Information Center, for the United States and all countries not managed by RIPE - NCC or APNIC), NSI (Network Solutions Incorporated) for allotment of generic directories (.com, .gov, .net) through InterNIC's authority, RIPE-NCC (European IP network - Network Coordination Center, for Europe), AFNIC (for France under the authority of RIPE-NCC and managed by INRIA, National Institute for the Data processing and Automated Research), and APNIC (for Asia Pacific zone). As domain names are granted on a first come first served basis, conflicts often arise between existing brands or trade names and domain names. The best protection is a simultaneous registration of your brand name (trademark or company name, see above) together with registration of your domain name of the type ending in .com, .fr, .net, etc., with the national organization that manages patent and trademark rights in your country. It is possible to register your site's domain name as a trademark (if your brand name is already registered with your national Intellectual Property institute or with WIPO) by justifying your ownership of the trademark. It is thus possible to obtain and register a domain name such as HILTON.tm.fr if you are the holder of HILTON T or ®. These precautions will ensure effective protection against a possible third party's fraudulent application to register a similar brand name, and later allotment of a domain name. For example, the holder of the mark HILTON.fr T or ® will be able to oppose the use by, or attribution to, others of HILTTON.fr as a brand or domain name. However, ownership of the HILTON mark alone may not be sufficient (except by invoking some clear offense of unfair competition, parasitic dealing, or abuse of the right of reservation of the domain name just added) to ensure withdrawal of a domain name such as HILTTON.fr. According to the Bern Convention signed in 1886 and last revised in 1996, any original intellectual creation is subject to ownership, confers on the owner a monopoly over exploitation, and provides the following exclusive rights: representation, reproduction, translation, broadcasting, adaptation, recording, public reciting, right of continuity, and moral rights. The protection lasts for the lifetime of the author and 7O years after his or her death. According to the World Trade Organization's TRIPS Agreement, computer programs should be considered as literary works and protected under national copyright laws. The legal precedent in several European countries and North America has considered that digitalization of an intellectual creation without the right to do so constitutes an illegal reproduction. The Internet is by nature a multimedia form. This, in conjunction with its international nature, makes traditional distinctions between works of the mind, designs, or models less and less relevant. Since the content of the Internet is multimedia by nature (images, sounds, designs, models, text) it is not possible here to go into the details of the various rights which are concerned. In addition to the symbols © for copyright and ® for registered trademark, which inform the user that a work is protected, one of the most common protections currently in use is electronic tattooing (watermarking) and citing of a third party, agent, and identifier of work. The work protected by copyright law can freely circulate on digital networks insofar as watermarking reinforces the right of ownership of its author, as the author is identified. It also makes it possible to know the methods used to manage any royalties and thus to whom rights must be paid.
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