Intellectual Property Rights

Updates

The European Patent Office (EPO) published new study that is focused on the examination of patents applications in the self-driving car industry. Given the necessity of high R&D investment in this industry, patent applications are becoming one of the major tools to safeguard and monetise these investments. The study presents trends, and the most important implications of patent protection that presents a valuable source of information both for the industry and any interested party. Also, this should help policymakers understand the novelties that this industry will bring to the regulatory area.

New York District Court Judge awards $6.6 million in damages to the plaintiffs in case against BTV set-top boxes. The recent case led by a group of right holders in the USA was on the grounds of illegal broadcasting of their programming. Apart from the positive judgement for right holders, this case is important due to the broad injunction granted against any third party whose services are used in connection to this illegal activity. This injunction can be enforced on any third party such as back-end service providers, routing providers, CDN (content delivery network), Internet service providers (ISPs), domain name systems (DNS), and even social media platforms; requiring them to stop services that support illegal activity. This will be an important tool for right holders since their efforts nowadays are more focused on co-operating with intermediaries while fighting online piracy.

The United States-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 of the agreement reflects the American Communication Decency Act at a large extent, 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. Contrary 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 ruled that Internet service providers (ISPs) can become liable when they do not take action once given notice of an infringement, in two landmark cases, SOCAN v. Canadian Association of Internet Providers and Crookes v. Newton.

Draft  Agreement on  the withdrawal of the UK from the EU published. Among other issues, the draft also deals with the area of intellectual property rights (IPR), and how they would function in the post-Brexit era. Intellectual property (IP) issues are elaborated in title IV and articles 54 to 61, and most of these provisions are the same as in the previous draft. One of the most important things for IP owners is that IPR registrations that were granted before the end of the transitional period would be valid in the UK as well, without any further formalities and charges (EU trademark, community registered designs, community plan variant rights). The same goes for invalidity proceedings. This is in line with the part that governs the transitional period that will last from 29 March 2019 until 31 December 2020. The draft states that in this period the EU acquis will apply to the UK as it is still part of the EU, but during this period the UK will not be a part of decision-making processes within EU institutions. However, since this is just a draft of the agreement that needs to be adopted in parliamentary proceedings (of the EU and the UK, as well as by the EU Council) additional changes in further periods may happen.

The European Court of Justice (ECJ) was requested to give a preliminary ruling regarding an unusual question: Can the taste of cheese enjoy copyright protection? Even though this question is not directly related to a digital policy issue, it is of relevance, since it can clarify what can be subject to copyright protection. The court has stated that taste cannot enjoy such protection, since it is not an ‘expression of an original intellectual creation’. Also, the expression of work must be such that the very item subject to protection can be identified with sufficient precision and objectivity. On the contrary, taste is subjective and depends on personal interpretation, so it is not eligible for copyright protection.

Content protection services provider NAGRA and satellite broadcaster DISH network, won the case against SetTV streaming services which was illegally re-broadcasting signals from the DISH network. This is another important case in the fight against online piracy, where SetTV was ordered  to shut down its website and services, in addition to acknowledging liability for these acts. Other representatives of the US creative industry such as Netflix, also filed lawsuits against SetTV for illegal broadcasting.

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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