The digital revolution has necessitated a re-examination of intellectual property issues by intellectual property holders, users and law makers. The nature of the digital age enables data to be easily copied, published and disseminated. Placing data, images, logos and text on websites, for example, is child’s play. This means that trade mark holders have a new frontier to battle. Misuse of their trade mark rights, deliberate or incidental, commercial or personal, arises in relation to cybersquatting and domain names, hyperlinking (particularly deep linking), framing in web pages and the use of meta-tags.

This chapter addresses issues relating to the impact of electronic commerce on the specific intellectual property rights of trade marks, patents and circuit layouts. It is intended to be only a brief overview of the law in these areas.

The nature of trade marks

A trade mark is ‘a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person’. A trade mark is used in the course of trade to show a connection between a particular business and the goods or services it supplies. Trade marks indicate a standard of quality associated with a product or service and protect consumers from confusion and deception. Trade marks are protected under common law and under the Trade Marks Act 1995 (Cth).

A prime example of the uptake of technology and the resulting order from the disorder has arisen through the availability of music and video files. In the 1990s the compression of files and increasing speed of the internet permitted the downloading of music files such as individual songs. In the 21st century the compression and speed have increased so dramatically that entire music albums, television shows and movies (of any length) are downloaded with ease. Internet users relish the technology. In the words of the High Court of Australia:

The downloading of music, video and other files online is prolific, if not epidemic. The transfer of copyright material – material that would have cost several billion dollars in total to buy – is a source of considerable concern for the music industry, in particular. The fact that a substantial number of such files are subject to copyright, and that the right to copy is one of the many exclusive rights provided by the Copyright Act, is typically disregarded by internet users. Notwithstanding the popularity of micropayment through the iTunes store, the Google Play store and the Microsoft store, to name a few, peer-to-peer (P2P) transfers have facilitated the majority of the downloads. There have been numerous cases brought before the courts aimed at stopping or at least discouraging these downloads. Yet sites providing access, most of them indirectly, on a P2P basis continue to flourish. This is a question of supply attempting to meet demand notwithstanding legal and perhaps moral concerns.

The changes that have occurred as a result of the availability of electronic mail (email) and digital communications go well beyond those wrought by the introduction of postal systems, the telephone, telexes and facsimile. Verbal communication can take place with greater ease and clarity online than over the telephone. Additionally, users can now digitally save conversations in a similar way to the way in which they can save email messages. The tools used to access and navigate between systems are steadily becoming cheaper, more powerful and easier to use. The internet allows us all to maximise our engagement in discourse, study and recreation in a manner previously unimaginable.

Email is now required by many government departments and courts for the lodging of materials and for correspondence. Email is a fast and efficient worldwide communication portal. This chapter deals with legal and practical issues relating to the use of electronic mail.

Email

Email is one of the most popular applications of the internet. It allows users to send messages created on the computer to any other internet computer in a matter of seconds. Data files such as photographs, sound clips and, more usually, wordprocessed document files, can be attached to an email message. In fact any file which can be stored digitally can be transferred by email. It is usually cheaper and quicker, and more reliable, than the ordinary post. Email is becoming integrated with other communication technologies, such as faxes, pagers and mobile devices. Email messages can be accessed on smartphones and tablets.

Social media and electronic commerce have evolved with unprecedented speed and energy. As with lex mercatori, where merchants and commercial parties embraced new methods and opportunities with a cavalier attitude to the law, so do participants in the online world. The law makers have the job of reacting to and providing an appropriate response to this ever-changing landscape. In the majority of circumstances, traditional legal principles will apply. This book reflects on the jurisprudential underpinnings, and at how they absorb and assimilate changing circumstances and create new structures and new rules.

The lawyer is trained not to know all the laws but to master the ability to research current law. The lawyer must carve a path through a labyrinth of regulations, primary and secondary sources, rulings, practice notes, periodicals and databases. No single law firm or department can physically store all the materials that may be called upon, but the internet can now deliver this avalanche of material, with only two preconditions. First, the authors and handlers of the material must be willing to permit public access, and second, the lawyer must be aware of its presence.

Australian lawyers and commercial parties need to monitor the changing Australian and international legal environment to ensure that their social, legal and commercial risk is controlled and minimised. Governments and courts must remain vigilant to keep abreast of social media issues and electronic commerce developments. Regulations in cyberspace must evolve in a way that maintains the global community’s commitments to fundamental human rights and to national governance, and that reflects the range of global values and human diversity. The application of the rule of law , and of human rights law, must move into cyberspace. There are ‘profound consequences for the future of the rule of law in cyberspace’, which has developed into its own unique notion: ‘the rule of cyberspace’. This rule of cyberspace is but another step in the path of social and jurisprudential development.

The clichéd and now classic approach to introducing the digital revolution is to compare it to the invention of the printing press by Johannes Gutenberg in 1450. The Renaissance of the Middle Ages emerged from dark and secretive times, and was contributed to by an explosion of books and the release of knowledge into the wider world. A neoteric intellectual spirit was fostered. Knowledge was power – a power formerly harnessed and monopolised by a relatively small number of abbey-bound monks who hand-copied rare and invaluable tomes and held them in monastic libraries unavailable to any but those the Church permitted. Mechanisation of the production process changed this situation dramatically, and within 50 years there were 20 million books published in Europe. ‘Information wants to be free’ may be the catch-cry of the internet age but it applies to the Middle Ages as well. Mass communication through the printed word became the vehicle that drove the Renaissance, enabling and fostering an exchange of knowledge and ideas. The ‘Electronic Renaissance’ takes advantage of global communications, high speeds, bulk transfers and massive data storage capacities to power a new global knowledge revolution. Individuals in modern society have their digital persona on multiple computers: in government databases, employer databases, as memberships, via social media participation, on criminal databases for some, and as more surreptitiously collected data when we browse the internet. Much of an individual’s digital persona is available to those who know the language of computers. Commercial enterprises collate data and make serious commercial decisions on a macro and micro level.

The classical theory of statistics was developed for parametric models with finite-dimensional parameter spaces, building on fundamental ideas of C. F. Gauss, R. A. Fisher and L. Le Cam, among others. It has been successful in providing modern science with a paradigm for making statistical inferences, in particular, in the ‘frequentist large sample size’ scenario. A comprehensive account of the mathematical foundations of this classical theory is given in the monograph by A. van der Vaart, Asymptotic Statistics (Cambridge University Press, 1998).

The last three decades have seen the development of statistical models that are infinite (or ‘high’) dimensional. The principal target of statistical inference in these models is a function or an infinite vector f that itself is not modelled further parametrically. Hence, these models are often called, in some abuse of terminology, nonparametric models, although f itself clearly also is a parameter. In view of modern computational techniques, such models are tractable and in fact attractive in statistical practice. Moreover, a mathematical theory of such nonparametric models has emerged, originally driven by the Russian school in the early 1980s and since then followed by a phase of very high international activity.

This book is an attempt to describe some elements of the mathematical theory of statistical inference in such nonparametric, or infinite-dimensional, models. We will first establish the main probabilistic foundations: the theory of Gaussian and empirical processes, with an emphasis on the ‘nonasymptotic concentration of measure’ perspective on these areas, including the pathbreaking work by M. Talagrand and M. Ledoux on concentration inequalities for product measures. Moreover, since a thorough understanding of infinite-dimensional models requires a solid background in functional analysis and approximation theory, some of the most relevant results from these areas, particularly the theory of wavelets and of Besov spaces, will be developed from first principles in this book.

After these foundations have been laid, we turn to the statistical core of the book. Comparing nonparametric models in a very informal way with classical parametric models, one may think of them as models in which the number of parameters that one estimates from the observations is growing proportionally to sample size n and has to be carefully selected by the statistician, ideally in a data-driven way.