The responsibility of internet intermediaries in cases of intellectual property rights infringement has long been debated. Wedged between rights holders and internet users, intermediaries are asked to provide surveillance from the first and to preserve an open internet by the second. An information meeting organised by the World Intellectual Property Organization tried to gather different points of view on the role and responsibility of internet intermediaries in the area of trademarks.
As decided at the 26th session of the Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT), the information meeting took place today (17 September), to be followed by the 27th session on 18-21 September.
Internet access providers are multifaceted entities. As described by the speakers at the meeting, they include hosts of virtual worlds, online marketplaces, auction houses, search engines, social media, and internet service providers, but also conference centres, companies, libraries, forums, blogs, amateurs and commercial platforms, and generative platforms such as YouTube.
Although all speakers agreed that trademark infringement should be prevented and punished, they said regulatory approaches differ widely between stakeholders.
Internet Changing Shape
According to Markus Kummer, vice president of public policy at the Geneva-based Internet Society (ISOC), there are currently two contradictory trends: increased recognition of the internet model and increased efforts by governments to control some aspect of the internet, which could hamper the internet?s full potential as an engine for innovation and growth.
The internet is changing shape, he said, and the majority of future new users will come from the non-English speaking world, from China, India, Brazil and Africa. New internet users will have different cultural and societal views and values, he said. Those cultural differences will influence debate and policymaking, he said.
For ISOC, Kummer said, the bottom line is that ?we need to ensure that we can maintain the elements that have made the internet such a success to date? ? namely being user-centric and user-driven ? and avoid placing unnecessary burdens on internet bodies such as intermediaries, he said.
Intermediaries are not meant to police the content and behaviour of internet users, although they should respond to legitimate demands by law enforcement, he said, but that should be the exception, not the rule.
Response to Infringement Too Slow for Trademark Owners
According to Severine Abis of Procter & Gamble international operations and member of the European Association of Trade Mark Owners (MARQUES), in Geneva, current actions against illegal content are both ineffective and too slow, in part due to the lack of clarity of the European Union E-Commerce Directive (2000/31/EC), which was adopted in 2000 and has become obsolete.
Among possible solutions, she said that all hosting service providers should have a procedure in place to notify of illegal content. There should also be a harmonisation of notice-and-takedown process and complainants should provide sufficient details and clearly identify the alleged illegal content as abusive notification should be prevented and sanctioned, she said.
For Jean Bergevin, head of unit at the European Commission Internal Market directorate, the existing rule in the EU should not be changed, because the e-commerce directive contains a safe harbour regime. Article 14 of the directive discharges internet service providers of liability for the information they store under a number of conditions, such as actual knowledge or awareness of illegal activities, and takes action if content is indeed infringing IP rights.
Instead, due diligence should be encouraged throughout the supply chain and information sharing between rights holders and intermediaries, which could save substantial costs for both sides, he said. ?Cooperation is better than litigation,? he added.
Bergevin also mentioned a memorandum of understanding (MoU) [pdf] signed in May 2011 between several stakeholders (IP Live, Enforcement, 15 May 2011).
David Ho, legal counsel for Alibaba.com, an online market platform based in Hong Kong, agreed that constructive cooperation between internet service providers and trademark owners is essential to keep the dialogue open and avoid a constant stream of litigation.
?The main issue comes down to trust from right holders,? he said, as the mutual objective is to eliminate or minimise IP infringement in the cyberspace.
A number of practical limitations to this goal are for example difficulties finding cooperative solutions with rights owners, persuading the owner to use the electronic system of notice and takedown, and agreeing on cooperative measures with respect to ?commercial reasonableness.? Moreover, industry and policymakers should make clear that responsibility for trademark protection and enforcement remains with trademark owners and clear safe harbour should be established.
Google on the Fence
Google has a particular situation because it provides an intermediary platform and a search engine but also makes phones, tablets and notebooks and offers online video services through YouTube, said Terry Chen, legal director for trademarks at Google US. Both brand owner and intermediary, Google spends a lot of time on prosecution and enforcement on abuses of the Google brand and has to address a large number of counterfeit problems with smart phones and tablets, she said.
Trademark law is often focused on consumer protection from confusion over the source of products and services, which is different from ?straight IP rights,? she said, because ?there is this consumer protection aspect,? but a balance is needed to address free speech and free expression issues.
Lots of different factors are at play with trademark protection, in particular the use of common words held in different areas of commerce, and the potential of fair use because of this linguistic monopoly, she said. ?We are called upon to be a trademark judge? but this is very difficult ?because as an intermediary we are not equipped with the same fact-finding powers as a court,? she said.
Google receives most the complaints about their advertising platform and YouTube, and has an online complaint procedure for both, she said. Some complaints that Google receives are not appropriate trademark complaints, she said.
?Trademarks are national creatures? said Nick Ashton-Hart, Geneva representative of the Computer & Communications Industry Association, ?the most national of all IP rights.? There is no magic simple solution to counterfeiting, he said. Often asked by delegates in Geneva about how Silicon Valley all started, Ashton-Hart said the answer is an important point in the current discussion. Certain conditions and legislations are needed to establish a favourable environment, including a safe harbour regime, he said.
?Safe harbour is a unique construction where internet services, rights holders, and the law cooperate to evolve over time and produce an ecosystem which is trustable,? he said.
It is not a perfect arrangement and it evolves differently in different legal systems, Ashton-Hart said, but ?you won?t find anywhere that has a highly entrepreneurial, successful internet culture where there is not a reasonably evolved safe harbour regime.?
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