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  • Intellectual property framework

    Overview

    Protection of intellectual property rights is required by the Federal Constitution and by several multilateral treaties. The main statutes in this area are federal statutes. However, in case of litigation, some matters are subject to federal jurisdiction, and others to provincial jurisdiction.

  • Commercial contract framework

    Overview

    Commercial contracts are governed by the Civil and Commercial Code. This code came into effect in 2015 and it replaces the previous separate Civil Code and Commercial Code. It is part of the federal legislation, but jurisdiction regarding its implementation and litigation resulting thereunder corresponds primarily to the provincial courts.

    The Civil and Commercial Code includes general provisions on contracts, which are applicable to all contractual transactions. These provisions govern matters such as the formation of contracts, offer and acceptance, possible subject matter of contracts, legal formalities, the legal effects of contracts, contract termination and others.

    In addition, the Civil and Commercial Code includes provisions applicable to specific types of contracts, such as sale agreements, leases, franchise agreements and agency agreements. More than 30 types of agreements are subject to specific provisions of this kind. These specially regulated agreements are thus subject to the general rules applicable to contracts –described above – and to the special rules applicable to the relevant type of agreement. Agreements that are not subject to special rules are nevertheless valid, and they are governed primarily by the general contract rules and – to the degree possible – by the rules applicable to analogous specially regulated contracts.

    Other laws include provisions on specific types of commercial contracts. For instance, the Copyright Law includes certain provisions of contracts related to software and to publishing; the Patent Law includes rules on license agreements; and the Insurance Law includes rules on insurance contracts. However, in all these specially regulated contracts, the general contract law rules included in the Civil and Commercial Code are also applicable.

    Commercial contracts with the federal or provincial governments or with other governmental entities are also governed by administrative law. Special rules on contracts with state entities have been included in federal or provincial laws, or have been developed by case law.

  • Copyrights

    Nature of right

    Copyright protects intellectual creations in all fields of science, art and literature. Article 1 of the Copyright Law includes a non-exhaustive list of possible intellectual works protected by copyright. These include, among others, literary and artistic works, music, architectural works and software.

    Copyright protects intellectual expressions, but not ideas. For example, the contents of a book in terms of sentences and other literary expressions are protected by copyright, but the creative idea underlying the book as a whole is not.

    Copyright results from the creation of an intellectual work. Registration is not necessary for copyright to exist, although it is necessary for the exercise of some rights by local authors. Upon creation of a protected work, copyright belongs to the original author or authors, who then may transfer their right, by contract or by the operation of certain legal rules.

    Copyright includes economic and moral rights. Economic rights consist, basically, in the exclusive right to use and exploit the protected work. The Copyright Law lists some of the elements of this exclusive right, such as the right to reproduce the relevant work, to market copies, to prepare derivative works or to have the work performed publicly.

    Moral rights include the so call "integrity right" – that is, the right to preserve the text, title and other contents of the work, even if property rights on such work have been assigned; the "paternity right," the author’s right to be named and identified as such together with the work; the "publication right," the right to decide whether the right will be published; and the "alteration right," the right to modify the work, even after it has been published. Moral rights belong to the author and they are generally non-assignable.

    Legal framework

    Copyright law is included in Law 11, 723, as amended. In addition, multiple laws and regulations govern matters such as related rights, publishers' rights and collective management societies.

    Argentina is part of the main multilateral international copyright agreements, such as the Trips Agreement, the Berne Convention and the Rome Convention. The provisions of these agreements are actively enforced by the courts.

    Duration of right

    The general rule is that copyright protection lasts for a term of seventy years, counted as of January 1 of the first year after the death of the author, as well as through the life of the author.

    In the case of work done through cooperation, the 70-year term is computed from the death of the last person who participated in the joint authorship of the work involved.

    In the case of posthumous works, the 70-year term is computed from the death of the author.

    The duration of protection of anonymous works whose copyright belongs to institutions, corporations or legal entities is 50 years from the date of publication of the work.

    Special rules on copyright duration apply to specific types of copyrightable works, such as photographs and cinematographic works.

    Ownership / licenses

    The basic rule is that ownership belongs to the author. Special rules have been developed in connection with special types of works, such as cinematographic works, derivative works and software.

    There are several types of joint ownership. It may apply to works done through cooperation, which imply a creative collaboration between different authors; to collective works, which are those created through the initiative or direction of one or more individuals, who coordinate or direct the efforts of several other individuals to achieve a joint result; and to composite works, which are the result of adding different separate works, each with a possible separate author and owner, into one final result.

    Works created by employees who have been hired for that purpose belong to the employer.

    Copyright may be subject to licenses, generally as part of broader contractual arrangements such as publishing agreements.

    Remedies for infringement

    Damages may be claimed before civil courts for all types of copyright violation. Registration of works is not necessary, except for local authors, whose rights may be suspended until registration takes place.

    It is also possible to file civil action to prevent further copyright violation, and to obtain preliminary remedies, such as injunction, in the course of civil procedures.

    Criminal remedies, particularly fines, are possible, but are not frequently applied.

  • Mask works / topographies

    Nature of right

    Mask works and topographies are not separately protected under Argentine law. They may be protected under patent law or by way of confidentiality.

    Legal framework

    Argentina has enacted no specific rules on chip protection. Although Argentina is part of the WTO and has approved the Trips Agreement, it has not yet implemented any rules on chip protection.

    The provisions on chip protection included in the Trips Agreement have not been deemed immediately applicable under Argentine law. In addition, Argentina has not ratified or implemented other multilateral treaties on chip protection, in particular the Treaty of Washington of 1989.

    Semiconductor technology, generally, and topographies, in particular, may be protected under the traditional intellectual property rules applicable to all types of technology, specially patent law and the rules on confidential information. Therefore, matters such as the duration of the relevant rights, ownership and remedies depend on the type of protection used in connection with each specific mask work or topography.

    Duration of right

    Not applicable for this jurisdiction.

    Ownership / licenses

     Not applicable for this jurisdiction.

    Remedies for infringement

    Not applicable for this jurisdiction.

  • Patents

    Nature of right

    Patents are a statutory right. The granting of patents is required by the Argentine Constitution and by different international documents, particularly the Trips Agreement. Patent rights imply an exclusive right to exploit a process or a product. The Argentine Patent Law defines the limits of these exclusive rights, on the basis of the provisions of the Trips Agreement.

    Legal framework

    Patents are governed by the Patent Law – Law 24,481, as amended. In addition, they are governed by the Trips Agreement and by the Paris Convention. Argentina is not a party to the Patent Cooperation Treaty.

    Duration of right

    The basic rule is that patents expire 20 years after the date in which the relevant patent application was filed. Argentina uses a "first to file" system, but it also applies the priority rules derived from the Paris Convention.

    Argentine law provides special rules on compulsory licenses and on patent termination due to lack of exploitation of the patented invention. Compulsory licenses may be granted in case of non-exploitation, competition law violations or sanitary emergencies, among other cases. Patent termination may result when, after a compulsory license was granted for lack of exploitation, no exploitation of the invention takes place for two years after the license was granted.

    Ownership / licenses

    Joint ownership is permissible. The Patent Law includes provisions on the exercise of patent rights by the joint owners. In addition the Civil and Commercial Code rules on joint property apply to patents.

    The Patent law includes rules on licenses. Licenses are not exclusive, unless the parties provide otherwise. Competition law rules are applicable to restrictive clauses included in license agreements.

    Remedies for infringement

    The Patent law provides both civil and criminal law remedies for cases of infringement.

    Civil remedies include the compensation of damages and termination of the infringing activities.

    A complex system of rules for preliminary remedies in patent cases is included in the Patent law. Generally, suspension of an alleged infringer's exploitation requires a preliminary procedure, with the participation of expert witnesses.

    Criminal procedures and sanctions are rare.

  • Trademarks

    Nature of right

    A trademark may consist of one or more words, with or without conceptual content, drawings, commercial symbols, monograms, engravings, prints, seals, images, stripes, color combinations, letter and number combinations, the special graphics of letters and numbers, advertisement phrases, reliefs, and any other sign with distinctive capacity.

    A trademark is normally protected by means of its registration. However, de facto trademarks, that is those that are used but not registered, are also protected in a more limited way.

    Legal framework

    Trademarks are governed by the Trademark Law – Law 22,362, as amended.

    In addition, trademarks are protected by the rules included in Trips Agreement and in the Paris Convention.

    Duration of right

    Registered trademarks are protected for a period of ten years, from the moment of registration. Trademark registration may be renewed indefinitely.

    Registration may be cancelled for lack of use during a period of five years. In addition, renewal of registration requires proof of the trademark's prior use.

    Ownership / licenses

    Ownership is acquired by means of registration. However, use of unregistered trademarks may result in certain rights for the user.

    Trademarks may be subject to joint ownership. The Trademark Law and the Civil and Commercial Code provide the rules applicable to these joint ownership relationships.

    Trademark licenses are possible. They are valid even if they are not registered with the trademark office.

    Remedies for infringement

    The Trademark Law provides both civil and criminal law remedies for cases of infringement.

    Civil remedies include the compensation of damages and the termination of the infringing activities.

    Special preliminary remedies are applicable in cases of trademark infringement. The trademark owner may obtain an injunction against the infringer, when the trademark is registered and its violation is immediately evident.

    Criminal law remedies are rarely used in practice.

  • Trade secrets

    Nature of right

    Argentine law provides protection for trade secrets and confidential information. A complex set of rules creates rights against conduct whereby access is gained illegally to confidential information, or which implies illegal use of trade secrets or confidential information or which results in the unauthorized and harmful disclosure of confidential or secret information.

    Confidential information is characterized by the fact that it is kept in a reserved manner and that it is not generally available for technicians working in the relevant technical field. Trade secrets receive a special degree of protection, particularly under criminal law.

    Legal framework

    Confidential information is governed and protected by Law 24,766. It is also protected by the Trips Agreement and by the Paris Convention.

    In addition, multiple rules and statutes protect confidential information and trade secrets. Labor law protects the confidentiality and ownership of information used in employment relationships.

    Several criminal law rules apply to special types of violations of confidentiality. In particular, disclosure of trade secrets and unfair competition by means of the illegal use or appropriation of trade secrets are subject to criminal law penalties.

    Duration of right

    Confidential information and trade secrets is protected for as long as the relevant information is kept confidential. The degree of protection diminishes if the information ceases to be objectively a secret, due to its previous disclosure or because it has been obtained independently by other parties.

    Ownership / licenses

    Ownership results from the obtention of the information, accompanied by legal or practical measures aimed at restricting access to that information by third parties. No registration requirement is applicable.

    Joint ownership is possible.

    Trade secret or know-how licenses are common and enforceable.

    Remedies for infringement

    Argentine law provides civil and criminal law remedies for cases of trade secret infringement.

    Damages caused by these violations must be compensated. It is also possible to obtain court orders requiring termination of the violation.

    Preliminary remedies include injunctions against further exploitation or disclosure of trade secrets.

    Criminal remedies are applicable in cases of disclosure of trade secrets acquired in the course of employment and other professional relationship, as well as in cases in which the violation of the rights to confidential information or trade secrets results in unfair competition.

  • Other key IP rights

    Nature of right

    Industrial designs

    Industrial models and designs are protected by special industrial property rights. An industrial model or design consists in the forms embodied in or the aspect applied to an industrial or artisan product, which confer an ornamental character to such product.

    Exclusive rights on industrial models and designs result from registration of the relevant model or design.

    Industrial designs

    Industrial designs

    Legal framework

    Industrial designs

    Industrial models and designs are protected by Decree 6673/1963, as amended. They are also protected in accordance with the Trips Agreement and the Paris Convention.

    Duration of right

    Industrial designs

    The rights derived from the registration of an industrial model or design last for a five-year period, counted from the date of filing of the relevant application. The registration may be renewed for two successive five-year period, if the owner requests such renewal.

    Ownership / licenses

    Industrial designs

    Ownership belongs to the author. There is a rebuttable presumption to the effect that the first applicant of an industrial model or design registration is the author of such industrial model or design. Joint ownership is possible, and is governed by the Civil and Commercial Code and by Decree 6673/1963 as amended.

    Industrial models or designs may be the subject matter of license agreements. No registration is necessary for the validity of these agreements.

    Remedies for infringement

    Industrial designs

    Civil and criminal law remedies are applicable in case of infringement. Civil remedies include the compensation of damages and termination of the violation.

    Preliminary injunctions and remedies are possible in accordance with general procedural rules.

    Criminal sanctions have been recently reinforced, but they are rarely applied.

  • Intellectual property in employment context

    Employees

    Special rules on employee inventions are included in the Patent Law and in the Labor Contract Law.

    There are basically three types of invention, from the perspective of employer-employee relationships. First, inventions made in technological areas for which the employee was hired as a researcher or developer belong to the employer. The employee may be entitled to a special compensation if he or she develops a patented invention which exceeds the normal scope of the employee's work. Second, inventions related to the employee's work or related to the employer's know-how or activities belong to the employee, but allow the employer to exercise an option to acquire rights over the invention. If the option is exercised, the employee is entitled to a payment reflecting the value of the invention. Third, inventions that do not fall into the two previous categories belong to the employee.

    Similar rules are applicable in the case of other types of technology or intellectual property rights. In the case of software, the law applies the “work for hire” doctrine, but allows the parties to agree to different contractual rules.

    Consultants / contractors

    The law is not explicit about the rights of consultants and contractors, who do not qualify as employees, with regard to technology and other intellectual property they develop. Generally, the parties may agree as to the rules which will apply to such rights. In the absence of a contractual framework, the technology or intellectual property generated by a consultant or contractor who was hired with the purpose of developing such items that will belong to the person paying for such work.

  • Key commercial contract considerations

    Registration of commercial agreements

    The general rule is that commercial agreements are not registered, and that their validity and effect is not subject to registration requirements. However, certain types of agreement must be registered to be effective or to have full effects against third parties. Agreements subject to registration include business association agreements, certain publishing agreements, certain chattel mortgages and certain agreements related to real estate. International transfer of technology agreements are subject to registration for tax purposes.

    Recognized language of commercial agreements

    Agreements are generally entered in Spanish. However, it is legally possible to enter agreements written in other languages. These agreements must be translated when presented in court. Spanish language may be necessary in consumer transactions.

    Country-specific issues for online content

    Argentina has ratified the WIPO conventions applicable online content and practices. However, enforcement of these conventions is weak.

    Enforceability of online/clickwrap/shrinkwrap terms

    The general rule is that acceptance of terms included in online, click wrap or shrink wrap elements is valid and effective, provided such acceptance is clearly stated and applies to terms that were known to the person giving the acceptance. However, several rules may limit the effects of agreements entered by these mechanisms, particularly consumer protection rules and rules on adhesion contracts.

    Governing law

    The basic rule is that the parties may agree as to the law that will govern their contractual rights and as to the applicable jurisdiction in case of dispute. This freedom of election is subject to several limitations. Non-Argentine law will not be enforced in Argentine courts if it  is contrary to Argentine public policy. Also, certain matters are necessarily governed by Argentine law. For example, if a business association is created in Argentina, its organization and other corporate aspects will be governed by Argentine law. Decisions made by non-Argentine courts or arbitration tribunals are enforceable in Argentina only after going through a special procedure before the Argentine courts, in the context of which the decision will only be enforced if it complies with certain rules, particularly not violating Argentine public policy. In addition, certain matters – ie, deciding the validity of a patent issued in Argentina – are necessarily subject to Argentine jurisdiction.

  • Key commercial contract terms

    Enforceability of warranty disclaimers

    Argentine law provides certain warranties, generally applicable to all types of contracts implying the transfer of rights. These warranties apply, in particular, to the validity of the rights being transferred and to the fitness of the goods regarding which rights are transferred.

    The general rule is that these warranties may be limited or eliminated by agreement between the parties. However, these disclaimers are totally or partially invalid in several types of cases: if the transferor had prior knowledge of the invalidity of the transferred rights or of the deficiency of the goods involved; if the transferor is a merchant and the parties waiving his or her rights are not; and if the warranty disclaimer is included in a consumer or adhesion contract.

    Enforceability of exclusions/limitations of liability indemnification

    Exclusions or limitations of liability indemnification are valid if they meet the general conditions applicable to contractual. However, they may be unenforceable in the following cases: when they extend to willful violations or defaults, or to violations or defaults resulting from gross negligence; when they are imposed in adhesion or consumer contracts; or when they result in the violation or annulment of rights that may not be removed or limited contractually.

    Indemnification

    The basic rule under Argentine law if full indemnification of economic or moral damages caused by illegal conduct, whether that conduct constitutes a contractual or a tort violation.

    The parties are free to include contractual rules as to the extent of their indemnification obligations.

    Penalty clauses and liquidated damages clauses are acceptable, but they may be limited or amended by the courts if their terms are deemed abusive.

    In the absence of contractual provisions, the indemnification's extent will depend on circumstances such as the willful or negligent nature of the violation, foreseeability of the damages caused and the comparative fault of the parties.

    Electronic signatures

    Electronic signatures are valid and effective under Argentine law. However, certain legal effects require that the signature comply with a special certification regime.

  • Key contacts
    Guillermo Cabanellas
    Guillermo Cabanellas
    Senior Partner DLA Piper (Argentina) [email protected] T +5411 41145500 View bio

Key commercial contract considerations

Country-specific issues for online content

Argentina

Argentina has ratified the WIPO conventions applicable online content and practices. However, enforcement of these conventions is weak.

Australia

The Copyright Act provides a 'safe harbor’ regime for service providers ("carriage service providers" as defined in the Telecommunications Act 1997), which limits their liability for copyright infringement by their customers (ie, liability by authorizing the infringing acts of their customers). Service providers must satisfy certain criteria in order to be protected by this scheme. Recent case law has left open the possibility of service providers being found to have authorized copyright breaches through a failure to act against infringing customers.

Copyright holders may issue "take down notices" to internet service providers (ISPs) if, on reasonable grounds, they believe that there is infringing material located on a webpage or network that is under the control of the ISP. Upon recipient of this notice, the ISP is required to immediately remove or block the content and issue an infringement notice to the individual or entity that posted the material.

Austria

The E-Commerce Act (E-Commerce-Gesetz) also provides limitations of liability for the providers of routing, search engine, caching, hosting and linking services under specific requirements in case of infringements.

Belgium

Book XII "Law of the Electronic Economy" of the Code of Economic Law provides several additional requirements regarding the information to be provided to conclude online agreements, including information about the service provider and the languages in which the agreement can be concluded.

Brazil

Federal Decree No. 7,962/2013 establishes several rules for e-Commerce. There is certain information that must be included in the website (eg, supplier's name, address for contact, information on additional and ancillary costs included in the price) and the supplier shall comply with certain obligations in order to make the purchase process easier to the customer (eg, to include a summary of the contract highlighting the clauses that may limit any right and to maintain an electronic consumer attendance service). Also, Federal Law No. 10,962/2004, modified by Federal Law No. 13,542/2017, establishes rules for price disclosure in e-Commerce (eg, font size and position of the price).

In 2015, Brazil enacted Federal Law No. 12,965 on Civil Rights Framework for the Internet (Marco Civil da Internet) and its Decree No. 8,771/16, dated May 11, 2016. This federal law stipulates the following:

  • Brazilian law and jurisdiction will be applicable if one of the parties engaged in the relation/service is located in Brazil
  • Internet services providers shall be liable for third parties content, if such third party does not comply with a court's orders (for instance, for removal of content)
  • Service/webpage may be shut down, by court order, if it does not comply with the law
  • Collection of data must be strictly related to the purposes of the collection and may not be shared or transferred to third parties without prior consent of the individual on this regard or by another applicable legal basis, in accordance with the Brazilian General Personal Data Protection law (Federal Law 13,709/2018)

Canada

Generally speaking, the common law system has attempted to adapt contract principles to online transactions. However, different provinces have enacted a variety of consumer protection statutes that may modify or define the basis upon which an online transaction may be carried out. For instance, in Ontario it is necessary to consider the provisions of the Electronic Commerce Act 2000 and the Consumer Protection Act.

Chile

Not appliable for this jurisdiction.

China

Not applicable for this jurisdiction.

Colombia

Colombia has a robust legislation on data privacy which means that any internet interaction shall comply with the current regime on date privacy, which means that the website shall request the authorization of data subjects for their data process and shall implement a privacy policy and an information security policy.

Law 1450 of 2011 has recognized the principle of neutrality, which dictates that users may use, send, receive and offer content, services or apps that are not illicit. In this regard, the Resolution 3502 of 2011 of the Ministry of Telecommunications (MINTIC) determines that internet contents are governed by four principles:

  • Free Choice: the user may use, sent, receive or offer any content, unless they are forbidden by the law or by the order of a judicial authority
  • No Discrimination: the network providers shall provide equal treatment to the content, apps and services, without any arbitrary discrimination
  • Transparency: the network providers shall reveal their users traffic management policies and the providers who may access their network
  • Information: the network providers shall provide to users the information regarding the services provided

Without limiting the aforementioned, Colombia does not have a specific regulation regarding intellectual property protection online and thus, the applicable law for the online content issues is the one that governs intellectual property in general as well as data privacy and the infringement of the right to intimacy and to a good name. In any case, the information and contents shared on the internet may not infringe the law.

Czech Republic

Not applicable for this jurisdiction.

Denmark

As a main rule, service providers will not be held liable for intellectual property right infringements due to their transmitting, routing or providing of connection to infringing content. However, certain requirements have to be fulfilled.

Service providers can be subject to interim injunctions if they are providing connection to infringing content.

Finland

Not applicable.

France

Specific rules apply when consumers are concerned, such as the requirement to put in place a double-click system when a consumer makes a purchase online, or the obligation to provide consumers with certain mandatory information via a durable medium (ie, in a pdf document or in the content of an email). In any event, the French Consumer Act (Loi Hamon) of March 17, 2014 has implemented European Directive 2011/83/EU dated October 25, 2011 on consumer rights. Thus, the rules applicable to agreements with consumers concluded online are to a certain extent similar in all European Union countries, save any local specificity.

Germany

As a general rule, a host service provider is not liable for copyright infringing content provided by others, provided that it does not have actual knowledge of the illegal content or, if it gained knowledge of the illegal content, has immediately removed or blocked the illegal content.

Hong Kong

There is currently no "safe-harbor" for online service providers in respect of copyright infringement occurring on their service platforms.

Hungary

There are special provisions on the liability of intermediary service providers for the transmitted illegal content. In given circumstances they shall not be liable. This in many cases includes complying with notice and takedown requests from rights holders.

India

While intermediaries (websites, Internet service providers) can shield themselves from liability arising due to third-party content, by taking certain statutory actions as required under the IT Act, this exemption from liability does not apply to copyright and patent infringement claims.

Indonesia

Indonesia has adopted Budapest Convention on Cybercrime through Law Number 11 of 2008 on Electronic Information and Transaction as amended by Law Number 19 of 2016 on the Amendment of Law Number 11 of 2008 (EIT Law).

Ireland

The statutory regime governing online content in Ireland generally derives from European law.

Israel

There are no specific requirements under Israeli law for online terms, which are considered to be a contract with all its implications (conditional upon the fulfillment of all elements under law required for the creation of a contract between two or more parties).

However, online terms may be deemed to be a standard contract under Israeli Standard Contracts Law (ie, a contract, the terms of which have been pre-determined by one party in order for them to be used in several agreements between that party and an undetermined and unspecified number of other parties). The consequence of an agreement being determined to be a standard contract by the court is that the court might strike out unfairly prejudicial terms contained within the contract.

Examples for such prejudicial terms include:

  • A condition denying or limiting a right or remedy available to the customer ("a person to whom a supplier offers an engagement to which a standard contract applies, whether such customer is the receiver or the giver of anything") under law
  • A condition imposing the burden of proof on a person who would not have to bear it but for that condition
  • A condition which denies or limits the customer's right to make certain pleas before judicial authorities or that determines that any dispute between the supplier and the customer will be settled in arbitration
  • A provision which relieves the supplier, fully or partially, of a liability which the supplier would have to bear under law if such condition was not included in the contract
  • A condition which requires a customer to confirm that the customer read the contract, or to declare that he/she has committed any act, or to approve the customer's knowledge concerning a certain matter or fact, excluding information provided by the customer to the supplier in the contract

Italy

With regard to B2C contracts, the Consumer Code, as amended by Legislative Decree No. 21/2014, provides for some specific obligations in relation to pre-contractual information to be communicated to consumers, such as the ones on the vendor, the specific object of the contract and the right of withdrawal.

With regard to the right of withdrawal, such right may be unilaterally exercised by the consumer within 14 days, even without any reason and with no expenses except for those connected to the decrease of the goods' value in case the returned goods are damaged. If the vendor has not properly informed the consumer on the withdrawal term, the right of withdrawal is extended to 12 months.

Furthermore, the Code provides that the delivery of goods shall take place at the latest within 30 days from the date of conclusion of the contract. An additional term may be provided under certain circumstances to the vendor to deliver the goods, but at the expiry of such term the consumer is entitled to terminate the contract and to obtain damages compensation.

Japan

Does not apply for this jurisdiction.

Luxembourg

The Luxembourg E-Commerce Law of August 14, 2000, as lastly amended by the Law of April 2, 2014, provides several additional requirements regarding the information to be provided to conclude online agreements, including information about the service provider and the languages in which the agreement can be concluded.

Mexico

There is no specific legislation regarding online content.

Netherlands

If a consumer acquires online content, the right to terminate the agreement within a 14-day period (general consumer right for online purchases) remains in effect. In order to exclude this right, the consumer needs to explicitly accept that:

  • Content will be provided within the 14-day period
  • That the right to terminate the agreement is waived after provision of the content

Furthermore, pursuant to Dutch consumer law, a subscription for online content may not exceed one year. After such term, the subscription can be terminated with one month's notice period. 

New Zealand

An Internet service provider does not infringe copyright merely because a consumer uses the Internet services of the provider in infringing the copyright or merely because the Internet service provider knows of the infringement from information received as a result of enforcement action taken pursuant to the Copyright Act 1994. However, in some cases injunctive relief is still available against the provider.

All consumer contracts, whether online or otherwise, are subject to the requirements in the Consumer Guarantees Act 1993 and the Fair Trading Act 1986. In addition, consumer credit contracts, whether online or otherwise, are subject to the Credit Contracts and Consumer Finance Act 2003.

Norway

Companies must adhere to the E-Commerce Act (No: ehandelsloven) and the Right of Cancellation Act (No: angrerettloven).

Poland

Generally, the hosting provider is not liable for content provided by third parties that infringes intellectual property rights provided that it was unaware of the unlawful character of the stored data or related activities or – having received an official notification or reliable information about the unlawful character of the data or related activities – denies access to the data or deletes the data, as applicable.

The hosting provider is not obliged to check (monitor) the data which it stores in order to assess whether they infringe any intellectual property rights. 

Portugal

Electronic contracts are regulated under Decree-Law no. 7/2004, of 7 January as later amended also known as the E-Commerce Law which enacted the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 and contracts concluded at a distance are regulated by Decree-Law no. 24/2014 of 14 February (as later amended) which enacts Directive EU/2011/83 of the European Parliament and of the Council of 25 October 2011, on the protection of consumers in respect of distance contracts. 

Romania

Law no. 365 of May 9, 2002 regarding e-commerce (E-Commerce Law) sets out the conditions for the provision of internet based services and incriminates criminal offenses related to the security of the domains used in electronic commerce, the issuance and use of electronic payment instruments and the use of identification data for the purpose of conducting financial transactions.

The E-Commerce Law features a safe harbor provision for Internet service providers to avoid liability for infringement claims arising from storing or transmitting information provided by a recipient of that service if certain conditions are met such as for example, if the service provider is unaware that the stored activity or information is unlawful and, in respect of damage claims, is unaware of facts or circumstances that indicate that the activity or information in question could harm the rights of a third party.

Russia

In relation to Internet-related infringements, under certain circumstances, the copyright owner or exclusive licensee may request the court to order blocking of an infringing website even before consideration of the case on the merits.

Saudi Arabia

Not applicable.

Singapore

All Internet Content Providers are automatically granted class licenses under the Broadcasting (Class License) Notification (Notification) and are required to comply with the Class License Conditions set out under the Notification and the Internet Code of Practice.

"Internet Content Provider" is defined in the Notification as, among other things, "any corporation or group of individuals (including any association, business, club, company, society, organization or partnership, whether registrable or incorporated under the laws of Singapore or not) who provides any program on the World Wide Web through the Internet."

The Internet Code of Practice issued by the Infocomm Media Development Authority (IMDA) under the Notification requires Internet Content Providers to, among other things, deny access to material considered by the IMDA to be prohibited material if required to do so by IMDA. "Prohibited material" includes material which glorifies, incites or endorses ethnic, racial or religious hatred, strife or intolerance.

Slovak Republic

Not applicable for this jurisdiction.

South Korea

The CA sets out a detailed list of the requirements for exempting an online-service provider from liability for carrying infringing materials. Subject to these requirements, a service provider must confine itself to acting as a mere conduit, to caching, to hosting, and to searching information in order to escape liability and to avoid responsibility for monitoring or investigating for infringing acts. To some degree, these safe-harbor provisions resolve the uncertainty previously surrounding the liability of online-service providers for direct infringement by their users. However, they also make it easier to impose liability on online-service providers if the requirements are not met.

Spain

Directive 2000/31/EC on information society services was implemented in Spain by Law 34/2002 on information society services and electronic commerce (LSSI).

Service providers are required to fulfill certain legal requirements set forth by LSSI. In particular, they shall make available a number of items such as the name or corporate denomination, residence, domicile or address of a permanent establishment in Spain, e-mail details of registration in the Companies Register or any other Public Register.

Sweden

Generally, there is no requirement on the form of the contract (with a few exceptions, for example real property). Thus, the parties are free to enter into agreements online.

Companies need to adhere to the Act on E-Commerce (2002:562) (Lag) om elektronisk handel och andra informationssamhällets tjänster), and in business to consumer relationships, the Off-Premises Contracts Act (2005:59) (Lag om distansavtal och avtal utanför affärslokaler) applies, which includes numerous obligations of the trader.

Switzerland

Not applicable for this jurisdiction.

Taiwan

The Copyright Act provides some limitations on liability for Internet service providers (ie, a connection service provider, a caching service provider, an information storage service provider and a search service provider) as long as, among other obligations, they:

  • By contract, electronic transmission, automatic detective system or other means, informs users of their copyright or plate right protection policy, and takes concrete action to implement it
  • By contract, electronic transmission, automatic detective system or other means, informs users that in the event of alleged copyright infringements up to three times, the service provider shall terminate the service in whole or in part
  • Publicly announce information regarding their contact window for receipt of copyright infringement notices

Ukraine

The E-Commerce Law dated September 3, 2015 is the key law on online transactions. It sets forth an obligation of sellers to provide customers with certain mandatory information. It also establishes a procedure for concluding an online agreement as well as confirmation of the received order.

Considering that online transactions are performed with the use of telecommunication services, which are rendered by diverse intermediary service providers (eg, providers of hosting, caching services), their role in the transaction may be qualified as pure provision of services or as a party to the transaction. If service providers are not involved into the transaction (ie, they do not initiate the transfer of information, do not choose its recipient and are not able to amend its content), they cannot be liable for infringements related to e-commerce transactions. However, if copyright or related rights are violated, the intermediary service providers cannot take advantage of the safe harbor. In such cases, the intermediary service providers are obliged to take necessary actions for protection of the right holder, eg, to consider the takedown notices, block the illegal content or to delete it when appropriate.

United Arab Emirates

Not applicable.

United Kingdom

Not applicable.

United States

The Digital Millennium Copyright Act (DMCA) is a US copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). The DMCA instituted criminal penalties for the production and distribution of technology, devices, or services intended to bypass technological means for controlling access to copyrighted works.

The DMCA features a safe harbor provision for Internet service providers and other intermediaries to avoid liability for copyright infringement claims arising from transmitting, routing, or providing connections to infringing content, provided that the service provider registers a designated agent with the Copyright Office. Designated agent registrations must be made electronically, timely updated and renewed every three years.