Konstantinos Komaitis
  • The Conversation

Let's Have a Conversation...​

PROTECT ACT 2011: An Internet Governance Perspective

5/14/2011

0 Comments

 
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.

0 Comments

Is GAC trying to reopen the trademark file?

12/8/2010

0 Comments

 
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.

0 Comments

    Konstantinos Komaitis, the individual!

    Views are my own and my own only!

    Archives

    March 2018
    January 2018
    November 2017
    July 2017
    May 2017
    October 2016
    January 2016
    April 2014
    March 2014
    February 2014
    July 2013
    June 2013
    March 2012
    January 2012
    December 2011
    November 2011
    October 2011
    September 2011
    July 2011
    June 2011
    May 2011
    April 2011
    March 2011
    February 2011
    January 2011
    December 2010
    November 2010
    October 2010
    September 2010
    July 2010
    June 2010

    Categories

    All
    Accountability
    Acpa
    Appeal
    .bank
    Book On The Current State Of Domain Name Regulation
    Cartagena
    Cctlds
    Civil Society
    Coica
    Collaboration
    Conference
    Copyright
    Copyright Infringement
    Counterfeit Goods
    Criminal Activity
    Czech Arbitration Court
    Dag4
    Dakar
    Default
    Democracy
    Dns
    Domain Name
    Domain Names
    Domain Names.
    Encryption
    E-PARASITE ACT
    Fair Use
    Free Speech
    Froomkin
    G20
    Gac
    Giganet
    Gnso
    Governmental Advisory Committee
    Gtlds
    Hargreaves Report
    Icann
    Icann Board
    In Rem
    In Rem Jurisdiction
    Intellectual Property
    Intergovernmental Organizations
    International Olympic Committee
    Internet
    Internet Governance
    Ioc
    Irt
    Jurisdiction
    Justice
    Licensing
    Lobbying
    Loser Pays Model
    Morality And Public Order
    Mueller
    Multistakeholder
    Multistakeholder Participation
    Multistakholderism
    Naf
    Nairobi Treaty
    Ncsg
    Ncuc
    #netflix
    New Gtld Applicant Guidebook
    New Gtlds
    New Kids On The Block
    Ngos
    Ninth Circuit
    Nominative Use
    Nominet
    Non-profits
    Not-for-profit
    Npoc
    Olympiad
    Olympic
    Online Infringement
    Online Infringement And Counterfeits Act
    Open Internet
    Paris Convention
    Pddrp
    Permissionless Innovation
    Phising
    Pipa
    Poll
    Ppdrp
    Preliminary Gnso Issue Report On The Current State Of The Udrp
    Procedural Justice
    Protect Act
    Protect Ip Act
    Public Policy
    Red Cross
    Registrant
    Registrars
    Review
    Rule Of Law
    S.3804
    Scorecard
    Senate Bill S.3804
    Senate Hearing
    Senator Leahy
    Sopa
    Sti
    Stop Online Piracy Act
    #streaming
    Supplemental Rules
    Tmc
    Trademark
    Trademark Bullying
    Trademark Clearinghouse
    Trademark Lobbying
    Trademark Owners
    Trademarks
    Transparency
    Udrp
    Urs
    Us Congress
    Us Department Of Commerce
    Uspto
    Wipo

    RSS Feed

    USEFUL LINKS
    Internet Governance Project
    Chilling Effects Clearinghouse
    The Internet Corporation for Assigned Names and Numbers (ICANN)
    The Uniform Domain Name Dispute Resolution Policy (UDRP)
    ICANN Blog
    CircleId

Powered by Create your own unique website with customizable templates.
  • The Conversation
✕