Intellectual Property Rights

Updates

The Federal Communications Commission (FCC) made an announcement on its website for set top box manufacturers and sellers, that all set top boxes which are not in accordance with FCC rules could face six figure fines. The announcement is made for anyone marketing or operating non-compliant devices (users, manufacturers, importers, and retailers) and hence violates FCC marketing and operating rules.

In its efforts to efficiently fight infringements of intellectual property rights (IPR), the US government has adopted a ‘Memorandum on combating trafficking in counterfeit and pirated goods’. The memorandum recognised once again the importance of the protection of intellectual property (IP) of US companies and its economy, considering that the USA is one of the countries that is most affected by IPR infringement. The memorandum sees co-operation in preventing the manufacture, importation, and sale of counterfeit and pirated goods as a priority for federal law enforcement agencies. It especially recognises the important role of intermediaries and their co-operation. Based on this memo, in the next 210 days, the Secretary of Homeland Security, in co-ordination with other relevant governmental bodies and relevant stakeholders, will prepare and submit a report to the President. The report should present relevant data about intermediaries’ role in IP infringement; evaluate existing procedures and policies about intermediaries and their role in IPR enforcement;  identify appropriate administrative, statutory, regulatory, or other changes, including enhanced enforcement actions, that could substantially reduce trafficking in counterfeit and pirated goods or promote more effective law enforcement regarding trafficking in such goods and all other measures that would be necessary in combating pirated and counterfeiting goods.

The Copyright Directive was approved by members of the European Parliament. 348 members voted in favour while 274 voted against it. Members states have 24 months from now to transpose the directive rules into their national legal systems. The content of the Copyright Directive has been subjected to lobbying from businesses, copyright holders and digital rights lawyers. The most controversial article 13 (renamed article 17) have passed almost with the same terms of the last proposed draft. The rule requires from websites new duties to stop users from uploading copyrighted content. Advocates against the Directive say that the new rule can lead to the implementation of filters that will monitor the content before it is uploaded to block any content that breaches copyrighted material. 

The Alliance for US Startups & Inventors for Jobs sent a letter of support to the Trump administration, for the planned withdrawal from an arrangement with the US Patent and Trademark Office on standards-essential patents that was vested during Obama’s presidency. Standards-essential patents (SEPs) requires the patent-owner to licence others under fair, reasonable, and non-discriminatory terms. The coalition claims that this kind of system hampers innovation on the cost of companies that innovate and encourage companies to profit from use of other companies’  innovations.

The Alliance for US Startups & Inventors for Jobs sent a letter of support to the Trump administration, for the planned withdrawal from an arrangement with the US Patent and Trademark Office on standards-essential patents that was vested during Obama’s presidency. Standards-essential patents (SEPs) requires the patent-owner to licence others under fair, reasonable, and non-discriminatory terms. The coalition claims that this kind of system hampers innovation on the cost of companies that innovate and encourage companies to profit from use of other companies’  innovations.

UN Special Rapporteur David Kaye stated that the European Union’s Copyright Directive should not impose a liability regime that weakens freedom of expression online. Article 13 of the latest version of the proposal provides that content sharing platforms must license copyright protected material from the rights holders. The service provider will be held liable if it cannot prove that the content was licensed or that it acted quickly to remove infringing material. Kaye considers that article 13 drives online platforms toward monitoring and restriction of user-generated content. He notes that this pressure to pre-filter content is 'neither necessary nor proportionate’ to address copyright violations online.

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.

 

The GIP Digital Watch observatory is provided by

 

 

and members of the GIP Steering Committee



 

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