A brand new piece of Internet legislation has emerged recently and seeks to address – what else – the protection of intellectual property rights. The ‘Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011’ – or more accurately ‘The PROTECT Act of 2011’ is the latest legislative attempt to combat illegal Internet activity related to intellectual property and marks a new step in the United States to ensure the elimination of any activity that facilitates trademark and copyright infringement and the sale and distribution of counterfeit goods and rogue pharmacies.
The PROTECT Act should certainly be considered the legislative extension of COICA. Principally, the Act follows the same logic of the Combating Online Infringement and Counterfeits Act (COICA) but extends its rational basis by targeting domain names and registrants located outside the United States. In so doing, the PROTECT Act uses the procedural devices of in personam and in rem jurisdiction, found in both the Anticybersquatting Consumer Protection Act (ACPA) and in COICA.
The proposal for this Act should not come as a surprise and follows the pattern of creating stronger forms of protection for intellectual property holders. It is a great addition to the attempts by the United States government to create an impenetrable shield around intellectual property owners and to build a multi-layered model of security for the various types of intellectual property. The Act is based on rationalizations emanating from a high degree of legal relativism concerning the boundaries and scope of intellectual property rights and, although the threats that it seeks to address are real and tangible, the lack of robust provisions for the protection of free speech and due process will dilute further our understanding in the Internet’s law making process.
The mere fact that in the space of a year the United States government has proceeded to such expansive legislation can only mean two things: first, since the United States government appears to be so prone to the demands of intellectual property owners, the democratic deficit in the shaping of Internet law grows bigger; and, second, intellectual property law changes drastically and through the interpretations of small, but very powerful, brand owners – a small fraction of rights holders within the intellectual property pool.
This exact pattern has been seen in the context of ICANN’s intellectual property debate. The alliance between rights’ holders and governments and the raising role of the governments in Internet Governance has placed obstacles and has disturbed a lengthy and consuming multistakeholder process and has remanded the Internet community to intellectual property wishes.
Much of the legal basis of the PROTECT Act is based on ambiguous terms whilst its procedural design continues to challenge due process and justice (a good analysis is provided by TechDirt). So, in effect, this Act continues to feed to the emerging hostile environment in the DNS and provides more means for capture of the whole domain name system by certain, non-representative intellectual property interests.
New entrants, entrepreneurs and innovators are expected to suffer from yet another attempt by America’s brand owners to expand intellectual property on the Internet.
At the ICANN meeting in Cartagena, the Governmental Advisory Committee (GAC) made one major mistake: they collectively indicated that the new gTLD process is not ready to roll on because trademark issues are not resolved. But, here is the problem – trademark issues will never be resolved to the full satisfaction of all parties concerned (especially the trademark owners). They cannot.
In the past couple ICANN meetings, GAC finds a new objection to stall the new gTLD process to the frustration of many stakeholders and users– in Brussels it was the Morality and Public Order (MAPO) issue, this time it was trademarks. What this does is that it places an unrealistic burden upon ICANN to come up with recommendations and solutions within a very tight timeframe. The Recommendation 6 Cross-Community Working Group had 90 days. The Special Issues Trademark Team (STI) had a month and a half. It is obvious that the GAC is not ready to accept the addition of new gTLDs (for its own political reasons), but this still begs the question – why now, why so late in the process?
The point is that if the new gTLD process fails, ICANN fails. It is as simple as that. But, especially when it comes to trademark issues, the GAC’s objections can become really problematic. If GAC puts pressure on re-opening the trademark file, they will be negating a process that was based on multistakeholder participation – a model of Internet governance accepted by the community – and will be undermining the legitimate conclusion of the STI.
It took a long time and much effort for the current trademark protection proposals to acquire the desired legitimacy. In the beginning was the illegitimate Implementation Recommendations Team (IRT), which the majority of the community rejected through the public comments. Then came Staff’s proposals, which had their own problems in seriously tackling the issues. And, finally, came the STI – I was a member of this team and I can tell you that the final document was a compromise but a compromise that everyone could live with. The trademark community got the Trademark Clearinghouse, the Uniform Rapid Suspension System and the Post Delegation Dispute Resolution Process. Three new mechanisms dedicated to the protection and presence of trademarks in the DNS. This is significant in that there already are existing processes that protect trademarks and through this new system ICANN was doing more than enough in securing their place in the DNS.
So, what is GAC’s problem? The only thing that is certain that between Brussels and Cartagena the trademark lobbying must have been fierce and systematic. The GAC was brainwashed. But this is not an excuse or our problem. If the GAC wants to raise objections on the basis of trademark protection, then it needs to it needs to hear form the whole community and not just from trademark owners. It needs to conduct research into the existing mechanisms and see how they can be fixed; it needs to provide so much more that the arguments we heard in Cartagena, a mere repetition of the same arguments we hear from the trademark community over the past ten years.
I am concerned about the GAC position. I am concerned because it will further frustrate the community and it proves that governments are inclined to sacrifice a lot in order to please trademark owners. This is truly disappointing from a group that it is entrusted the heave duty to protect the human rights and civil liberties of its citizens.
Konstantinos Komaitis, the individual!