Intellectual Property Rights

Updates

The U.S.-Mexico-Canada trade agreement (USMCA), replacing the NAFTA, is expected to be signed by the end of November 2019. The agreement provides robust intermediary liability protections to websites and online platforms. The article 19.17.2 reflects at a large extent the American Communication Decency Act, providing that “no Party shall adopt or maintain measures that threat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information”. This provision, depending on how it will be integrated into Canadian law by the Parliament, can impact the Canadian system of intermediary liabilities. Contrarily to the US, Canadian law holds websites liable for third-party content, if they know that the content is illegal. The Supreme Court of Canada in two landmark cases, SOCAN v. Canadian Association of Internet Providers and Crookes v. Newton, ruled that ISPs can become liable when they do not take action once given notice of an infringement.

On 2 November 2018, the Delhi High Court held the online marketplace Darvey.com liable for the sale of Christian Louboutin products, which were allegedly counterfeits. The plaintiff claimed intellectual property rights, considering the platform used the name and image of Louboutin as meta-tags to attract traffic on their platform. Darvey.com alleged that they do not sell any product, but merely enable the booking of the order through their online platform. The ruling of the court observed that when an e-commerce has commissioned over unlawful acts, it is not a mere passive transmitter or online intermediary anymore. In the same ruling, the Court required Darveys.com to present the contact of all sellers, to request a certificate from its sellers that the products are not counterfeits, and to notify the trademark owners before having the products available on the platform. The case was a relevant precedent to make clear the extent of the safe-harbour possibilities under the Information Technology Act. Since the case Baazee.com, related to the sale of obscene videos, e-commerce businesses have denied liability for the products uploaded by users.  

During the regular yearly review of exemptions to Section 1201 of the DMCA that allow circumvention of digital rights management (DRM) and similar measures, the copyright office included new exemptions that are considered “fair use”. The new exemptions are related to the possibility of users circumventing DRM to repair their own video games. The second exception is related to circumventing DMR to preserve abandoned video games. This will practically mean that a museum can break DMR in order to enable playing of old video games. The exemption is not applicable to games connected to online video game servers.

 

 

The European Court of Justice (ECJ) has answered the request for a preliminary ruling of a German court about liability of committing copyright infringement by family members. Copyright infringement committed by downloading copyrighted material without permission was conducted by using Mr Michael Strotze’s Internet network. Strotze argued that he is not liable for such infringement, since there are other family members who had access to the house’s Internet, but did not provide further details. ECJ had to weigh the balance between protection of family and private life vs. protection of interests of copyright holders. The court decided that relevant EU legislation “must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which, as interpreted by the relevant national courts, the owner of an internet connection used for copyright infringements through file-sharing cannot be held liable to pay damages if he can name at least one family member who might have had access to that connection, without providing further details as to when and how the internet was used by that family member. (para 55)”

 

On Content Protection Summit held in Warsaw in organization of Sygnal Association and with support of EUIPO the most important stakeholder in anti-piracy and content protection industry gathered in order to discuss latest trends, best practices and potential solutions for the burning issues in this field. As a result of two days discussions participants drafted and signed “Warsaw declaration” that is emphasizing importance of cooperation in fight against piracy. Also the question of  efficient enforcement was raised, especially in regard of transposition of article 8.3. of Copyright directive which would enable measures such as web-site blocking. This declaration is important step forward in fight against piracy and shows determination of all relevant actors to join their forces in this fight.

The Council of Europe (CoE) adopted a new customs action plan 2018-2022 that should help customs authorities combat intellectual property rights (IPR) infringements. This plan should contribute to the better enforcement of IPR, especially in regard of trading with counterfeit goods, as well to strengthen co-operation between relevant authorities. In following period, the CoE should develop a road-map for the implementation of this plan and also to monitor its implementation.

Knowledge and ideas are key resources in the global economy. The protection of knowledge and ideas, through Intellectual Property Rights (IPR), has become one of the predominant issues in the Internet governance debate. Internet-related IPR include copyright and trademarks. Copyright protects the expression of an idea when it is materialised in various forms, such as a book, CD, or computer file. The idea itself is not protected by copyright. In practice, it is sometimes difficult to make a clear distinction between the idea and its expression.

 

The copyright regime has closely followed the technological evolution. Every new invention, such as the printing press, radio, television, and the VCR, has affected both the form and the application of copyright rules. The Internet is no exception. The traditional concept of copyright has been challenged in numerous ways, from those as simple as ‘cutting and pasting’ texts from the Web to more complex activities, such as the massive distribution of music and video materials via the Internet.

The Internet also empowers copyright holders, by providing them with more powerful technical tools for protecting and monitoring the use of copyrighted material. These developments endanger the delicate balance between authors’ rights and the public’s interest, which is the very basis of the copyright law.

 

The issues

Amend existing or develop new copyright mechanisms?

How should copyright mechanisms be adjusted to reflect the profound changes effected by ICT and Internet developments? One answer suggested by the US government’s White Paper on Intellectual Property and the National Information Infrastructure is that only minor changes are needed in existing regulation, mainly through ‘dematerialising’ the copyright concepts of ‘fixation’, ‘distribution’, ‘transmission’, and ‘publication’. This approach was followed in the main international copyright treaties, including the Trade-Related aspects of Intellectual Property Rights (TRIPS) convention and the WIPO Copyright Treaty.

However, the opposite view argues that changes in the legal system must be profound, since copyright in the digital era no longer refers to the ‘right to prevent copying’ but also to the ‘right to prevent access’. Ultimately, with ever greater technical possibilities of restricting access to digital materials, one can question whether copyright protection is necessary at all. It remains to be seen how the public interest, the second part of the copyright equation, will be protected.

 

Protection of the public interest – the ‘fair use’ of copyright materials

Copyright was initially designed to encourage creativity and invention. This is why it combined two elements: the protection of authors’ rights and the protection of the public interest. The main challenge was to stipulate how the public can access copyrighted materials in order to enhance creativity, knowledge, and global well-being. Operationally speaking, the protection of the public interest is ensured through the concept of the ‘fair use’ of protected materials.

 

Copyright and development

Any restriction of fair use could weaken the position of developing countries. The Internet provides researchers, students, and others from developing countries with a powerful tool for participating in global academic and scientific exchanges. A restrictive copyright regime could have a negative impact on capacity building in developing countries. Another aspect is the increasing digitisation of cultural and artistic crafts from developing countries. Paradoxically, developing countries may end up having to pay for their cultural and artistic heritage when it is digitised, repackaged, and owned by foreign entertainment and media companies.

 

Knowledge and ideas are key resources in the global economy. The protection of knowledge and ideas, through IPR, has become one of the predominant issues in the Internet governance debate, and has a strong development-oriented component. Internet-related IPR include copyright, trademarks, and patents.

Trademarks are relevant to the Internet because of the registration of domain names. In the early phase of Internet development, the registration of domain names was based on a first come, first served basis. This led to cybersquatting, the practice of registering names of companies and selling them later at a higher price.

 

Mechanisms for the protection of trademarks

 

This situation compelled the business sector to place the question of the protection of trademarks at the centre of the reform of Internet governance, leading to the establishment of ICANN in 1998. In the White Paper on the creation of ICANN, the US government demanded that ICANN develop and implement a mechanism for the protection of trademarks in the field of domain names. Soon after its formation, ICANN introduced the WIPO‑developed Universal Dispute Resolution Procedure (UDRP).

The recent introduction of the new gTLDs reinvigorated the relevance of trademark for domain names, ICANN, and overall IG.

ICANN’s Trademark Clearinghouse (TMCH) authenticates information from rights holders and provides this information to registries and registrars.

The UDRP - the primary dispute resolution procedure - is stipulated in advance as a dispute resolution mechanism in all contracts involving the registration of gTLDs (e.g. .com, .edu, .org, .net), and for some ccTLDs. Its arbitration awards are applied directly through changes in the DNS without resorting to enforcement of trademark protection through national courts.

Events

Actors

(WIPO)

WIPO has developed, together with the

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WIPO has developed, together with the Internet Corporation for Assigned Names and Numbers, the Uniform Domain Name Dispute Resolution Policy (UDRP). Under this policy, WIPO’s Arbitration and Mediation Centre provides dispute resolution services for second level domain name registrations under generic top-level domains (gTLDs). The Centre also administers disputes under a specific policies adopted by some gTLD registries (e.g. .aero, .asia, .travel). In addition, the Centre offers domain name dispute resolution services for over 70 country code top-level domains (ccTLDs). WIPO has developed a ccTLD Program, with the aim to provide advice to many ccTLD registries on the establishment of dispute resolution procedures.

(INTA)

INTA promotes trademarks with the aim of protecting consumers and promoting fair global commerce.

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INTA promotes trademarks with the aim of protecting consumers and promoting fair global commerce. The organisation carries out policy advocacy through amicus briefs and model laws and guidelines. It has carried out research on different issues such as the EU trademark system and country guides, and also publishes the trademark reporter, a journal on trademark law. INTA actively engages with ICANN, and has been carrying out an impact study on the costs of new gTLDs.

(UNESCO)

UNESCO sees online learning as a cornerstone for building inclusive knowledge societies.

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UNESCO sees online learning as a cornerstone for building inclusive knowledge societies. This ties with its mandate to promote the free exchange of ideas and knowledge, as demonstrated by their key role in the World Summit of Information Society. In June 2016 UNESCO launched a guide for policy-makers in developing countries on Massive Open Online Courses (MOOCs). Co-published by the Commonwealth of Learning (COL), the guide also looks at the role of online learning and MOOCS in the Education 2030 Agenda and the achieving of Sustainable Development Goal 4.

(CC)

Creative Commons works on enabling the sharing and reuse of creativity and knowledge through the provision of

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Creative Commons works on enabling the sharing and reuse of creativity and knowledge through the provision of free legal tools. Although Creative Commons is best known for its licenses, it also offers other legal and technical tools that can facilitate the sharing and discovery of creative works, such as CC0. At the policy level, CC advocates in national and international fora for positive legal and regulatory changes in education, science, and culture, via its Open Policy Network (OPN).

(ICANN)

ICANN is responsible for coordinating the evolution and operation of the Domain Name System.

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ICANN is responsible for coordinating the evolution and operation of the Domain Name System. The organisation coordinates the allocation and assignment of names in the root zone of the DNS, and the development and implementation of policies concerning the registration of second-level domain names in generic top-level domains (gTLDs). It also facilitates the coordination and evolution of the DNS root name server system. When it comes to gTLDs, ICANN concludes agreements with registry operators (for the administration of each gTLD), and accredits registrars. In the case of country code top-level domains (ccTLDs), ICANN only goes as far as (re)delegating them on the basis of some high-level guidelines.

(EFF)

As a civil society organisation working on promoting the protection of human rights in the digital space, the

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As a civil society organisation working on promoting the protection of human rights in the digital space, the EFF has been advocating for the net neutrality principle through multiple activities. In the USA, for example, the EFF has been involved in several activities aimed at defending net neutrality and the regulation adopted by the Federal Communications Commission in 2015. In the EU, the organisation supported the savetheInternet.eu campaign, which advocated for strong net neutrality rules to be adopted by European regulators. In 2014, the EFF launched, together with other organisations for multiple countries around the world, a global coalition for net neutrality.

Instruments

Conventions

Judgements

Resolutions & Declarations

Standards

Other Instruments

Resources

Publications

Internet Governance Acronym Glossary (2015)
An Introduction to Internet Governance (2014)

Papers

Personal Data Storage in Russia (2015)
Comparative Analysis on National Approaches to the Liability of Internet Intermediaries for Infringement of Copyright and Related Rights (2014)
Competition in the Software Industry: the Interface between Antitrust and Intellectual Property Law (1999)

Reports

Enabling Growth and Innovation in the Digital Economy (2016)
2016 Special 301 Report (2016)
The Impact of Digital Content: Opportunities and Risks of Creating and Sharing Information Online (2016)
Content Removal Requests Report (2016)
Report of the Director General to the WIPO Assemblies (2015)

Other resources

The Twitter Rules (2016)

Processes

Click on the ( + ) sign to expand each day.

13th IGF 2018

WSIS Forum 2018

12th IGF 2017

WTO Public Forum 2017

WSIS Forum 2017

IGF 2016

WTO Public Forum 2016

To keep the Internet engine running, innovation is key, especially when it comes to intellectual property. Unlocking Internet Economy through Copyright Reform (WS 167) addressed the consequences of copyright policies on Internet innovation, with the session organisers arguing that the current Internet innovation system, characterised by ‘multinational corporations, fledging start-ups, telecommunications providers, content creators and consumers [forming] increasingly complex value chains’, often contradicts the copyright regime.

 

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