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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