REGULATING ELECTRONIC COMMERCE IN THE NETHERLANDS Coren prins Intellectual property The Dutch legal system of intellectual property rights is highly determ ined by European legislative initiatives. Both the European Directive on software protection and the European Directive on Data base protection have been implemented into Dutch law. This implied an amendment of the Copyright Law as well as the introduction of a sui generis aw on the protection for those databases that do not meet the requirement of originality under the Dutch Copyright Law. Since the introduction of the new legislative measures, court rulings have been issued on several of their provisions. In particular the case lw on data base protection is of interest, since the legislative framework merely works with vague protection criteria such as substantial investment and leaves their specific interpretation up to the courts. In general, it becomes clear that apply ing the criterion of substant al is not a matter of simple reasoning. The court rulings show different interpretations, whereby the more recent rulings of the courts of appeal have shown to be more strict as regards the criterion thus requiring considera ble effort from the relevant party to qualify for substantial investment 2 At present, the Dutch legislature is preparing for yet another series of amendments to the Copyright Law. As known,on I May 1999, in response to the amendments submitted by the European Parliament, the European Commission issued a draft copyright directive. The final text of this directive was adopted in 2001. The Directive claims that it a ms to adjust and complement the existing EU framework on copyright and related rights to respond to the new challenges of technology and the information society, to the benefit of both right holders and users. Furthermore, it envisages establishing a level play ing field for copyright protection in the new environment, and in particular covering the reproduction right, the communication to the public right, the distribution right, and legal protection of anti-copy ingand rights managementsystems Center for Law, PublE Adminstration and Informatisation. Coren Prins partic pates in a large research proect on e-commerce related matters, establshed by the University of Tilburg and the Techncal University of Eindhoven under the Co-operation Centre of Brabant Universities shttp://www.urvtnl/sobu> The Software Directive was mplemented n 1994 (Stb. 1994, 521) The Database Directive was implemented in 1999(Stb. 1999, 303) District Court Den Haag, 14 January 2000, Computerrecht, 2000/3, p. 154; Dstrict Court Haarlem, 21 April 2000, Computerrecht 2000A4, p 209, Dstrict Court Rotterdam, 22 August 2000, Commputerrecht 2000/5, p. 259; Ditrict Court Den Haag, 12 September 2000, Computerrecht 20006, p. 297; Court of Appeal Den Haag, 21 December 2000, Mediafonam 2001/2, p. 87. See for a dicussion of several rulng: P B Hugenholtz, The New Database Right: Early Case Law from Europe,FordhamUniversitySchoolofLawNewYorkapril2001,availableat:<www.ivir.ni>. Amended Proposal for a European Parliament and Council directive on the harmonisation o ertain aspects of copyright and related rights in the Informaton Society,( draft copyright directive ) COM(99)250fmal, OJC 1806, 25.06. 1999. 200129C,OJLl67/5,22062001
REGULATING ELECTRONIC COMMERCE IN THE NETHERLANDS Corien Prins* VI 1 Intellectual property The Dutch legal system of intellectual property rights is highly determined by European legislative initiatives. Both the European Directive on software protection and the European Directive on Database protection have been implemented into Dutch law. This implied an amendment of the Copyright Law as well as the introduction of a sui generis law on the protection for those databases that do not meet the requirement of originality under the Dutch Copyright Law. 1 Since the introduction of the new legislative measures, court rulings have been issued on several of their provisions. In particular the case law on database protection is of interest, since the legislative framework merely works with vague protection criteria such as substantial investment and leaves their specific interpretation up to the courts. In general, it becomes clear that applying the criterion of substantial is not a matter of simple reasoning. The court rulings show different interpretations, whereby the more recent rulings of the courts of appeal have shown to be more strict as regards the criterion thus requiring considerable effort from the relevant party to qualify for substantial investment . 2 At present, the Dutch legislature is preparing for yet another series of amendments to the Copyright Law. As known, on 21 May 1999, in response to the amendments submitted by the European Parliament, the European Commission issued a draft copyright directive3 . The final text of this directive was adopted in 2001.4 The Directive claims that it aims to adjust and complement the existing EU framework on copyright and related rights to respond to the new challenges of technology and the information society, to the benefit of both right holders and users. Furthermore, it envisages establishing a level playing field for copyright protection in the new environment, and in particular covering the reproduction right, the communication to the public right, the distribution right, and legal protection of anti-copying and rights management systems. * Center for Law, Public Administration and Informatisation. Corien Prins participates in a large research project on e-commerce related matters, established by the University of Tilburg and the Technical University of Eindhoven under the Co-operation Centre of Brabant Universities <http://www..uvt.nl/sobu> 1. The Software Directive was implemented in 1994 (Stb. 1994, 521). The Database Directive was implemented in1999 (Stb.1999, 303). 2. District Court Den Haag, 14 January 2000, Computerrecht, 2000/3, p. 154; District Court Haarlem, 21 April 2000, Computerrecht 2000/4, p. 209; District Court Rotterdam, 22 August 2000, Computerrecht 2000/5, p. 259; District Court Den Haag, 12 September 2000, Computerrecht, 2000/6, p. 297; Court of Appeal Den Haag, 21 December 2000, Mediaforum 2001/2, p. 87. See for a discussion of several rulings: P.B. Hugenholtz, The New Database Right: Early Case Law from Europe , Fordham University School of Law, New York, april 2001, available at: <www.ivir.nl>. 3. Amended Proposal for a European Parliament and Council directive on the harmonisation of certain aspects of copyright and related rights in the Information Society, ( draft copyright directive ), COM(99) 250final, OJ C 180/6, 25.06.1999. 4. 2001/29/EC, OJ L 167/15, 22.06.2001
PRINS In anticipation of the European Directive, the Dutch govemment opened in 2000avirtualdiscussiononitssitewww.minjust.nl/auteursrecht.Here,companies representative organisations, citizens and other interested parties could express their opinion on the position and future of copyright in an online environment. In providing for this online discussion, the Dutch legislature intended to start the implementation process of the Directive in an early phase and collect the different views on society on the European measures In mplementing the European rules, the Dutch legislature is advised by a special commission on copyright matters, Commissie Auteursrecht. Since its establishment, this commission has published several reports on among others the effects of the European copyright directive on the Dutch system. Both the commission as well as the dutch govemment took a rather critical opinion on the European Directive, in particular the proposed articles 5(provisions on exceptions to the exclusive rights of reproduction and communication to the public, including the right to make available )and 6 (protection of technological measures against circumvention) of the Directive. In general, the Dutch government was not in favor of lim iting several of the traditional exceptions to the exclusive rights of users. In December 2001, the dutch cabinet approved a Bill that implements the European Copyright Directive. It was send to the Raad van State for comments, after which it is expected to be send to Parliament in 2002. Prior to the cabinet s approval, the Minister of Justice send a letter to Parliament in which he took a position on an earlier advice of the Commissie Auteursrecht as well as a draft proposal for the implementation of the Directive Dutch case aw has not dealt extensively with the copyright status of hyperlinking. In the August 2000 ruling on the website Kranten. com, the court found that linking and deeplinking on a frequent basis does not constitute an infringement of copyright. However, a company that links to a website it knows to contain infringing copyright material, acts not in accordance with the aw. 9 Although not dealing with the status of hyperlinking, the November 2001 court decision in KaZaa against the Dutch copyright organisation Buma/Stemra is of interest, because it shows that the Amsterdam court ruled in line with the US Napster decision thatnew techniques for distributingmusic on the Internet infringe copyright law. 0 At present, there is some debate in Dutch legal doctrine on the status of patent protection for e-commerce related inventions. As known, much of the technology underly ing online commerce, whether in the form of equipment or computer software, is subject to patent protection. While the granting of patents for computer See: Commisse Auteursrecht Advies over auteursrecht, naburige rechten en de nieuwe meda, The Hague, 18 August 2998. The report s dscussed by EJ. Arkenbout im Informatierecht/AMI 1998/9, p. 161 ee: EJ. Arkenbout, Richtliin auteursrecht ennaburige rechten in de nformatemaatschappij naar een Europees auteursrecht, Computerrecht 2001 B pp. 126-130. <http://www.minaznl/data/1008340438.doc> TK 2001-2002. 26538nr. 5. Voor het advies van de Commissie Auteursrecht evenals een roorontwerpvanwet<http://wwwminjust.nl/abeleid/auteurswetbeleidb District Court Den Haag 9 June 1999, Computerrecht 1999/4, p. 200 District Court Amsterdam, 29 November 2001(KazaA versus Buma/temra). Available shttp://www.rechtspraak.nl/uitspraak/frameset.asphuiid-29615>ljn-nr.Ad6395)
PRINS 2 In anticipation of the European Directive, the Dutch government opened in 2000 a virtual discussion on its site www.minjust.nl/auteursrecht. Here, companies, representative organisations, citizens and other interested parties could express their opinion on the position and future of copyright in an online environment. In providing for this online discussion, the Dutch legislature intended to start the implementation process of the Directive in an early phase and collect the different views on society on the European measures. In implementing the European rules, the Dutch legislature is advised by a special commission on copyright matters, Commissie Auteursrecht. Since its establishment, this commission has published several reports on among others the effects of the European copyright directive on the Dutch system.5 Both the commission as well as the Dutch government took a rather critical opinion on the European Directive, in particular the proposed articles 5 (provisions on exceptions to the exclusive rights of reproduction and communication to the public, including the right to make available ) and 6 (protection of technological measures against circumvention) of the Directive. In general, the Dutch government was not in favor of limiting several of the traditional exceptions to the exclusive rights of users.6 In December 2001, the Dutch cabinet approved a Bill that implements the European Copyright Directive. It was send to the Raad van State for comments, after which it is expected to be send to Parliament in 2002.7Prior to the cabinet s approval, the Minister of Justice send a letter to Parliament in which he took a position on an earlier advice of the Commissie Auteursrecht as well as a draft proposal for the implementation of the Directive.8 Dutch case law has not dealt extensively with the copyright status of hyperlinking. In the August 2000 ruling on the website Kranten.com, the court found that linking and deeplinking on a frequent basis does not constitute an infringement of copyright. However, a company that links to a website it knows to contain infringing copyright material, acts not in accordance with the law.9 Although not dealing with the status of hyperlinking, the November 2001 court decision in KaZaA against the Dutch copyright organisation Buma/Stemra is of interest, because it shows that the Amsterdam court ruled in line with the US Napster decision that new techniques for distributing music on the Internet infringe copyright law.10 At present, there is some debate in Dutch legal doctrine on the status of patent protection for e-commerce related inventions. As known, much of the technology underlying online commerce, whether in the form of equipment or computer software, is subject to patent protection. While the granting of patents for computer 5. See: Commissie Auteursrecht, Advies over auteursrecht, naburige rechten en de nieuwe media , The Hague, 18 August 2998. The report is discussed by E.J. Arkenbout in Informatierecht/AMI 1998/9, p. 161. 6. See: E.J. Arkenbout, Richtlijn auteursrecht en naburige rechten in de informatiemaatschappij: naar een Europees auteursrecht , Computerrecht 2001/3, pp. 126-130. 7. <http://www.minaz.nl/data/1008340438.doc>. 8. TK 2001-2002, 26538, nr. 5. Voor het advies van de Commissie Auteursrecht evenals een voorontwerp van wet: <http://www.minjust.nl/a_beleid/auteurswet/beleid/> 9. District Court Den Haag, 9 June 1999, Computerrecht 1999/4, p. 200. 10. District Court Amsterdam, 29 November 2001 (KaZaA versus Buma/Stemra). Available at: <http://www.rechtspraak.nl/uitspraak/frameset.asp?ui_id=29615> LJN-nr. AD6395)
REGULATINGELECTRONIC COMMERCE IN THE NETHERLANDS programs which produce a commercially useful outcome is no longer an overly ontentious issue, attention has turned to the patent bility of business methods implemented by means of digital technology. Also in the Netherlands, questions arise as to whether business methods should be granted patent protection. No case erall, the conclusion is justified that intellectual property rights in the technology which supports electronic commerce, the materials which are made availa ble or transmitted online in digital form and the identifiers used by individuals and entities trading on the Internet have been an important focus of legalattention at the Dutch national level in recent years. Together with the issue of privacy(which is being dealt with undemeath in this report )intellectual poperty rights is an issue of high importance on the Dutch policy agenda Internet governance Internet Governance is a topic that is often addressed in reltion to domain names From, this perspective the issue has not draw much attention at the Dutch policy level Court proceedings are, however, countless. At various instances, the Dutch courts are issuing rul ings on the status of doma in names under the dutch trademark awas well as the rules on unfair competition. In general, these rulings shows a very unfriendly attitude toward the so-called domain grabbers. A well-known doma in grabber in their tra demark and subsequently held to violate the rights of these companies. 3 the Netherlands is Namespace, which was sued by various com panies for violat The Dutch State itself was also involved in court cases, try ing to protect its right to various govemment-related terms such as troonrede. nl, prinsjesdagnl regeringnl en miljoenennota. nl. The court of Amsterdam ruled in favor of the Dutch State. In comparison with other years, the 2001 number of court rulings on domain name grabbing was limited In the Netherlands, the mana gement of doma in names is under the e resTo of the Stichting Intemet Domeinnaamregistratie Nederand (SIDN). It is a private non-govenmental entity. Thusfar, the position of this organisation is undisputed. No such extensive debate as on the intemational forum regarding the constitutional and organisational status of ICANn is being held in the Netherlands with respect SIDN. Also, only a handful of publications point to regulatory questions surrounding Intemet doma in name govemance. 4 Under the present registration procedure for the See for a recent analysis: D. W.F. Verkade, D.J.G. Visse, LD. Brunng, Ruimere octroo iering van computerprogmmma s techmicalityof reohtie?, ITeR- recks no 37, The Hague 2000. See also Parliamentary Papers, nr. 216 See for a discuss ion on the protecton of software and bus ness methods under the Dutch patent system: T. Overdijk, Octrooirecht en ICT, Recht en Infnmatietechnobgie. Handboek oor iken beleid, chapter 7H, February 2001 13 Seeonalltheserulingshttp://www.domeinnaam-jurisprudentie.nl ee: E. Dommering, Het adres in cyberspace heeft geen plats, ITeR-reeks no. 15, Deventer 1999, pp 3-24; T. Clarkson, H. FEcher, R Hes, J. Smits, Mechanisnen oor de verdeling lan telecommunicatientammers, ITeR-reeks no. 15, Deventer 1999, pp 27-179.N. Sitompoel, et. AL
REGULATING ELECTRONIC COMMERCE IN THE NETHERLANDS 3 programs which produce a commercially useful outcome is no longer an overly contentious issue11, attention has turned to the patentability of business methods implemented by means of digital technology. Also in the Netherlands, questions arise as to whether business methods should be granted patent protection. No case law is, however, available.12 Overall, the conclusion is justified that intellectual property rights in the technology which supports electronic commerce, the materials which are made available or transmitted online in digital form and the identifiers used by individuals and entities trading on the Internet have been an important focus of legal attention at the Dutch national level in recent years. Together with the issue of privacy (which is being dealt with underneath in this report) intellectual property rights is an issue of high importance on the Dutch policy agenda. 2 Internet governance Internet Governance is a topic that is often addressed in relation to domain names. From, this perspective the issue has not draw much attention at the Dutch policy level. Court proceedings are, however, countless. At various instances, the Dutch courts are issuing rulings on the status of domain names under the Dutch trademark law as well as the rules on unfair competition. In general, these rulings shows a very unfriendly attitude toward the so-called domain grabbers . A well-known domain grabber in the Netherlands is Namespace, which was sued by various companies for violating their trademark and subsequently held to violate the rights of these companies.13 The Dutch State itself was also involved in court cases, trying to protect its right to various government-related terms such as troonrede.nl , prinsjesdag.nl , regering.nl en miljoenennota.nl . The court of Amsterdam ruled in favor of the Dutch State. In comparison with other years, the 2001 number of court rulings on domain name grabbing was limited. In the Netherlands, the management of domain names is under the responsibility of the Stichting Internet Domeinnaamregistratie Nederland (SIDN). It is a private, non-governmental entity. Thusfar, the position of this organisation is undisputed. No such extensive debate as on the international forum regarding the constitutional and organisational status of ICANN is being held in the Netherlands with respect to SIDN. Also, only a handful of publications point to regulatory questions surrounding Internet domain name governance.14 Under the present registration procedure for the 11. See for a recent analysis: D.W.F. Verkade, D.J.G. Visser, L.D. Bruining, Ruimere octrooiering van computerprogramma s: technicality of revolutie?, ITeR-reeks no. 37, The Hague 2000. See also: Parliamentary Papers, nr. 21670. 12. See for a discussion on the protection of software and business methods under the Dutch patent system: T. Overdijk, Octrooirecht en ICT , Recht en Informatietechnologie. Handboek voor rechtspraktijk en beleid, chapter 7H, February 2001. 13. See on all these rulings: http://www.domeinnaam-jurisprudentie.nl. 14. See: E. Dommering, Het adres in cyberspace heeft geen plaats, ITeR-reeks no. 15, Deventer 1999, pp. 3-24; T. Clarkson, H. Fischer, R. Hes, J. Smits, Mechanismen voor de verdeling van telecommunicatienummers, ITeR-reeks no. 15, Deventer 1999, pp 27-179. N. Sitompoel, et. Al
PRINS top level doman nl, foreign companies and citizens cannot file for a domainname In a report, published by Sidn in Novem ber 2001, it is proposed to extend the registration of nI doma ins to foreigners. Another proposal is to introduce a dispute resolution system similar to the well known UDRP-procedure for the nl domain names. At present, domain name conflicts can only be solved in The Netherland through an formal court procedure(kort geding) A more fundamental debate on Intemet govemance is that on the required regulatory framework for commercial and other activities on the Internet and the organizations, existing or yet to be formed, which are to develop, implement and enforce those principles. Should the Internet be treated asa separate jurisdiction, is a new international governance structure required and what kinds of models of govemance should apply? The answer to these questions centers in the Netherlands around the question whether legislative projects should be based on the adage"what holds offline should also hold online" On severaloccasions, the Dutch govemment has held that in discussions on how to regulate developments like electronic commerce, the Internet, and, more in general, the electronic highway, the leitmotiv should be: what holds offline, should in principle also hold online. In the 1998 Memorandum on Legislation for the Electronic Highway, the cabinet puts it thus: In the first pace, the council of ministers chooses as a starting point that the noms that hold for the electronic highway must be the same as the noms in the physical world. o In some situations, however, this starting point can not be met. For example, in situations in which the traditional legal provisions result in problems when applied to an electronic environment(e.g. in the areas of consumer protection or private international law), one will have to consider whether other rules have to apply. Besides, existing and future European and intermational agreements sometimes do not leave room maintaining the adage. 7 Thus, the desire to create an international approach t certain ICT-related problems will result in different rules apply ing to the offline and the online worlds 1& Thus, a more detailed look at the legislative developments in the Nethera nds as well as abroad shows that it is getting increasingly problematic to uphold the adage consistently when dealing with the various specific problems. The ada ge appears to have to taste defeat when concrete topics are worked out, because given certain interests (such as consumer protection, legal certa inty, promoting electronic commerce) specific rules for the online world are being introduced nonetheless One can also perceive this tendency at an intemational level (in any case, in the n, ITeR-reeks nr. 46, The Hague 2001 15 niEindrapportdOmeinnaamdebat.Availableat:<www.domeinnaamdebatnb 16 Nota Wetgeving voorde elektronische siehveg, TK(Parlamentary Papers )1997-1998, 25880, nrs.1-2,p.114.AllParliamentarypApersareavailableinDutchat<http://www.overheidn> See, for instance, the Miniter of Justice s answer to questions by the standing committee on 18. Nota Weggeving voorde elektronische srehveg, TK (Parliamentary Papers)1997-1998, 25880
PRINS 4 top level domain .nl, foreign companies and citizens cannot file for a domainname. In a report, published by SIDN in November 2001, it is proposed to extend the registration of .nl domains to foreigners.15 Another proposal is to introduce a dispute resolution system similar to the well known UDRP-procedure for the .nl domain names. At present, domain name conflicts can only be solved in The Netherland through an formal court procedure (kort geding). A more fundamental debate on Internet governance is that on the required regulatory framework for commercial and other activities on the Internet and the organizations, existing or yet to be formed, which are to develop, implement and enforce those principles. Should the Internet be treated as a separate jurisdiction, is a new international governance structure required and what kinds of models of governance should apply? The answer to these questions centers in the Netherlands around the question whether legislative projects should be based on the adage "what holds offline, should also hold online". On several occasions, the Dutch government has held that in discussions on how to regulate developments like electronic commerce, the Internet, and, more in general, the electronic highway, the leitmotiv should be: what holds offline, should in principle also hold online. In the 1998 Memorandum on Legislation for the Electronic Highway, the cabinet puts it thus: In the first place, the council of ministers chooses as a starting point that the norms that hold for the electronic highway must be the same as the norms in the physical world. 16 In some situations, however, this starting point can not be met. For example, in situations in which the traditional legal provisions result in problems when applied to an electronic environment (e.g. in the areas of consumer protection or private international law), one will have to consider whether other rules have to apply. Besides, existing and future European and international agreements sometimes do not leave room for maintaining the adage.17 Thus, the desire to create an international approach to certain ICT-related problems will result in different rules applying to the offline and the online worlds.18 Thus, a more detailed look at the legislative developments in the Netherla nds as well as abroad shows that it is getting increasingly problematic to uphold the adage consistently when dealing with the various specific problems. The adage appears to have to taste defeat when concrete topics are worked out, because given certain interests (such as consumer protection, legal certainty, promoting electronic commerce) specific rules for the online world are being introduced nonetheless. One can also perceive this tendency at an international level (in any case, in the (Zelf)regulering van nummers en domeinnamen, ITeR-reeks nr. 46, The Hague 2001. 15. .nl Eindrapport Domeinnaamdebat. Available at: <www.domeinnaamdebat.nl>. 16. Nota Wetgeving voor de elektronische snelweg, TK (Parliamentary Papers) 1997-1998, 25880, nrs. 1-2, p. 114. All Parliamentary Papers are available in Dutch at <http://www.overheid.nl> 17. See, for instance, the Minister of Justice s answer to questions by the standing committee on judicial affairs in: TK (Parliamentary Papers) 1999-2000, 26538, nr. 2, p. 5. 18. Nota Wetgeving voor de elektronische snelweg, TK (Parliamentary Papers) 1997-1998, 25880, nrs. 1-2, p. 114
REGULATINGELECTRONIC COMMERCE IN THENETHERLANDS European Union). 19 Therefore, as is argued in Dutch legal doctrine, it is unwise, when thinking bout regulation, to hold on to the concrete rules of the offline world as a starting point. The approach should not so much equa te in principle the concrete rules of the online world with those of the offline world, but rather, the level of protection in both worlds should be the same. Thus, the government should pay much more attention to the interests and goals that(should) underpin the rules of the offline and online worlds respectively. The question one is to pose oneself is why certa in rules prevail in the offline world and why these rules should be ma inta ined in the online world If the online world introduces specific differences with the offline world, one will have to analyse the effect of these differences on the existing rules, considering the rationale of these rules Rather than automatically transposing the rules of the physical world to the online world, the legislator should be creative in finding solutions to the pecific problems of the online world. It is this conclusion that was a lso drawn by the Dutch legislature in its May 2000 policy document on internationalisation and aw.20 An interesting point that should be mentioned here is that the offline =online approach can of course also work the other way around: what holds online, must also hold offline. In short the legislator will have to observe the interaction betweer the rules of the two worlds, and not merely argue from out of the framework of the offline-world rules a point that should be mentioned here is that as regards the discussion whether a general Lex Internet, an overall Act that would regulate various issues related to the Intemet, should be introduced, the Dutch govemment takes the position that a Lex Intemet is not expedient for the moment, but that it is an interesting option in the longer run.2 Finally, it should be mentioned here that, based on the work of Lawrence Lessig, several Dutch publications ha ve recently dea lt with the issue that the technology and architecture which make up the intemet can, in themselves, act as a regulator of activ ity on the internet. 22 3 The digital divide As regards the digital divide, there is some discussion on the access of indiv iduals to ICTand their use of the Internet. However, the prime focus of the discussions in See for an extensive analys s and discussion of varous countries: EJ. Koops, J.E.J. Prns, M hellekens, S. Girath, E. Schreuders, Governments on Intemational iation and ICT Law. The positions of Germany, France, the United Kingdom, and the United States, in: ICT Law and Internationalisation A Suney of Govemment views(EI Koops, J.EJ Pns, H Himans, eds. h Kluwer Lawlntemational, The Hague 2000, pp. 73-192 20. Notitie Intemationalserng en recht m de Informatemaatschappij, TK(Parliamentary Papers) 1999-200,25880,mr.10,p.13 Nota Wetgeving voor elektronische smehweg, TK1997-1998, 25880, nrs. 1-2, P 1 19 K.J. Koelman, Bescherming van technische voorzieningen, AM 2001/1, pp 9-15; B van Klink, J.E.J. Prns, W. Witteveen, Het concepmuele tekon, Infodrome/Amsterdam University Press
REGULATING ELECTRONIC COMMERCE IN THE NETHERLANDS 5 European Union).19 Therefore, as is argued in Dutch legal doctrine, it is unwise, when thinking about regulation, to hold on to the concrete rules of the offline world as a starting point. The approach should not so much equate in principle the concrete rules of the online world with those of the offline world, but rather, the level of protection in both worlds should be the same. Thus, the government should pay much more attention to the interests and goals that (should) underpin the rules of the offline and online worlds respectively. The question one is to pose oneself is why certain rules prevail in the offline world and why these rules should be maintained in the online world. If the online world introduces specific differences with the offline world, one will have to analyse the effect of these differences on the existing rules, considering the rationale of these rules. Rather than automatically transposing the rules of the physical world to the online world, the legislator should be creative in finding solutions to the specific problems of the online world. It is this conclusion that was also drawn by the Dutch legislature in its May 2000 policy document on internationalisation and law.20 An interesting point that should be mentioned here is that the offline = online approach can of course also work the other way around: what holds online, must also hold offline . In short, the legislator will have to observe the interaction between the rules of the two worlds, and not merely argue from out of the framework of the offline-world rules. A point that should be mentioned here is that as regards the discussion whether a general Lex Internet, an overall Act that would regulate various issues related to the Internet, should be introduced, the Dutch government takes the position that a Lex Internet is not expedient for the moment, but that it is an interesting option in the longer run.21 Finally, it should be mentioned here that, based on the work of Lawrence Lessig, several Dutch publications have recently dealt with the issue that the technology and architecture which make up the internet can, in themselves, act as a regulator of activity on the internet.22 3 The digital divide As regards the digital divide , there is some discussion on the access of individuals to ICT and their use of the Internet. However, the prime focus of the discussions in 19. See for an extensive analysis and discussion of various countries: E.J. Koops, J.E.J. Prins, M. Schellekens, S. Gijrath, E. Schreuders, Governments on Internationalisation and ICT Law. The positions of Germany, France, the United Kingdom, and the United States, in: ICT Law and Internationalisation A Survey of Government views (E.J. Koops, J.E.J. Prins, H. Hijmans, eds.), Kluwer Law International, The Hague 2000, pp. 73-192. 20. Notitie Internationalisering en recht in de Informatiemaatschappij, TK (Parliamentary Papers) 1999-2000, 25880, nr. 10, p. 13. 21. Nota Wetgeving voor de elektronische snelweg, TK 1997-1998, 25880, nrs. 1-2, p. 119. 22. K.J. Koelman, Bescherming van technische voorzieningen , AMI 2001/1, pp. 9-15; B. van Klink, J.E.J. Prins, W. Witteveen, Het conceptuele tekort, Infodrome/Amsterdam University Press 2001