The Development of Policy Recommendations for Enhanced Legal Support to ICT: Roadmapping Approach of LEGAL-IST Project

• Author: Elena I. Neaga; Tarek M. Hassan; Chris D. Carter
• Position: Research Associate (Dr), Loughborough University, Leicestershire, UK. Senior Lecturer (Dr), Loughborough University, Leicestershire, UK. Research Associate, Loughborough University, Leicestershire, UK
• Pages: 207-221

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1. Introduction

The competition in global economy and electronic marketplaces has encouraged the companies/organisations and especially, SMEs to collaborate through advanced networked paradigms, and to adopt emerging information technologies solutions and e-business models. Moreover, research and practice in the area of collaborative networks including Virtual Professional Communities (VPC) are delivering new solutions supported by innovative and evolving strategies and models. However, the development of these approaches has not always been matched by an appropriate legal and regulatory framework resulting in legal barriers which have hindered the deployment of advanced ICT solutions ( Hassan, et al, 2004; Shelbourn, et al, 2004; Spindler, et al, 2004) and hence, the "Internet era" has generated potential serious legal problems. Furthermore, the legal issues may emerge as critical when the stakeholders in a particular network such as peer-to-peer file sharing have specific interests which are not adequately addressed and controlled from the legal perspective. Comprehensive analyses of several legal aspects of networking are in-depth researched and reported by Bainbridge (2004), Hughes et al. (2008) and Spindler, et al. (2004) among others. Also emerging developments of ICT/IST have generated legal problems (Du Plessis and Du Toit, 2006), which could be effectively solved through adequate legal research and further practice (ibid). Some projects and related research have suggested frameworks and analytical models considering relevant technical, economic, structural, legal, political, cognitive, and cultural constraints.

The research reported in this paper is focused on the essential legal issues for collaborative networks and e-business that may become part of a comprehensive and holistic framework. The paper reports on the research findings of the LEGAL-IST project (Legal Issues for the Advancement of Information Society Technologies - IST-2-004252-SSA), which led to policy recommendations based on a roadmap for the provision of harmonised legal support at European level. It also addresses several identified legal issues, related gaps and barriers to the adoption of IST, and proposes a set of high priority policy recommendations (LEGAL-IST Consortium, 2004; LEGAL-IST Consortium, 2005, 2006; LEGAL-IST Consortium, 2007; Neaga el al, 2007) to be considered by policy makers of European Commission and related organisations.

The project, which has been funded by the European Commission under the IST (Information Society Technologies) programme, has made important contributions towards the definition of a strategy for the evolution of a European legal framework for the advancement of information and communication technologies (ICT) and particularly, for supporting collaborative networks including SMEs and VPCs as well as the essential legislation required for widely adoption of Radio Frequency Identification in industry and business. The contributions of the paper based on project results are presented in section 5. The background of the legal research and the project, as well as the gap analysis, is included in sections 1 and 2. Particularly, section 2 provides an overview of legal studies undertaken within LEGAL-IST. The rest of this paper is organised as follows: section 3 includes a briefing of road mapping theory and section 4 presents the development of the Page 208 roadmap and related activities such as the Consensus Building campaign. The conclusions and way forward are defined in the section 6 and 7.

An Engineering Perspective on Legal Research and Practice

Over the last three decades, academic lawyers have increasingly researched in a way that is less focused on the normal needs of legal practitioners. Academic lawyers have become more fully integrated into the university research communities, developing interdisciplinary approaches from philosophical, sociological, historical, political, economic and technological perspectives. Although academic lawyers continue to produce work mainly designed for practitioners, legal research nowadays has a much broader scope, context and impact (Bainbridge, 2004; Brownsword, 2008; ECOLEAD Consortium, 2007). More recently, synergies have been created between law and applied computer science and engineering due to several legal problems which have emerged and this research is usually considered within a distinct area of computer law (Bainbridge, 2004).

The legal research has also used advanced computer methods, knowledge strategies, electronic document management systems and other supporting tools. On the other hand, new interdisciplinary areas have emerged such as "forensic computing" mainly dealing with computer based criminal investigations and other cyber based approaches for industry, business, government as well as security and defence. Therefore, problems of the modern world require advanced legal research work using scientific methods such as engineering synthesis, analysis and road mapping. An engineering approach of applied legal research has not been widely used and reported. It represents a contribution of this paper from a conceptual perspective.

Gap Analysis and Identification

The profound shift from companies/organisations containing isolated hierarchical functions to highly collaborative (virtual) networks spanning a multitude of organisations in a variety of countries is associated with some risks, which include legal issues such as information security, data protection/privacy, intellectual property (IP) rights etc. Therefore the definition of a strategy for the evolution of the European legal and regulatory framework is required and it is based on the analysis of the existing gaps related to legal issues resulting from collaborative networks advancements. These gaps have been identified by a significant previous research including Spindler, et al (2004) and Pullman et al. (2006) as well as LEGAL-IST comprehensive legal studies 9, 13, 14, 16 which are presented in section 2 of this paper. The relevant legal research gaps for collaborative networks and electronic business are defined as follows:

A Gaps related to new, emerging e-business models and their deployment (LEGAL-IST Consortium, 2004; LEGAL-IST Consortium, 2005, 2006; Spindler et al, 2004)

1. Issues on the legal framework of virtual professional communities (VPC), in terms of the legal identity of a VPC, typology of business relationships among VPC members and between the members and the VPC from the legal point of view, implied liabilities, and IPR on the created/managed knowledge;

2. The new collaborative models require the need to harmonize the legislation of the different countries of Europe. ECOLEAD Project Consortium (2007) has defined the collaborative network (CN) as an association consisting of entities (e.g. organisations and people) that are largely autonomous, geographically distributed, and heterogeneous in terms of their operating environment, culture, social capital and goals, but that collaborate to better achieve common or compatible goals, and whose interactions are supported by a computer network. Most forms of collaborative networks imply some forms of organisation over the activities of their constituents, identifying roles for the participants, and some governance rules. Therefore, these can be defined as collaborative networked organisations (CNOs) (Camarinha-Matos and Afsarmanesh, 2004). These approaches have included the definition and development of effective support tools to promote trans-national co-operation which consider the legal aspects and related harmonisation issues. Moreover these approaches (Neaga et al, 2007) may reduce the economic differences between EU regions and provide equal opportunities to all the European SMEs;

3. Issues on the legal framework of SMEs' Cluster in order to identify and address an evolving framework required for operating an SME cluster, to demarcate the liability of the cluster's broker, and to identify mechanisms for the management of the created knowledge (ownership, IPR, etc.); and

4. Privacy issues, mainly with respect to networked organisations and e-Government approaches.

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B Gaps related to the new technologies, deemed to emerge in the near future

1. Legal implications of using open source software and development, related liability issues (which need to be clarified with respect to the use of open-source software), study of the existing competition law and the clarification of intellectual property rights (IPR);

2. Use of software agents, with particular emphasis on the legal nature of agents, legal liabilities of using the agents in electronic commerce, knowledge management and virtual enterprises contexts, and the permission to use and process information collected by agents and potential activities to be undertaken such as contract...