Archive for the ‘intellectual property’ Category

Mohamed Ali Saeh, “Online Defamation and Intermediaries’ Liability: International”

January 10, 2013

Mohamed Ali Saeh (Queensland University of Technology – Faculty of Law) has posted “Online Defamation and Intermediaries’ Liability: International”. The abstract reads:

The Internet technology and the increasing popular World Wide Web have brought enormous benefits to our lives, with their emphasis on free and easy communication. It has become simple for people to buy books, make electronic payment for tickets or goods and even work online. Additionally, information can now be shared a more expedient way amongst a greater number of individuals than even before. As a consequence of this technological advance, it often becomes impossible to identify the source of material made available online and whether that material is subject to copyright infringement, trade mark infringement, and online defamation or is an obscene publication.

In recent years, the Internet technology and the increasing popular World Wide Web have brought enormous benefits to our lives, with their emphasis on free and easy communication. It has become simple for people to buy books, make electronic payment for tickets or goods and even work online. Additionally, information can now be shared a more expedient way amongst a greater number of individuals than even before. As a consequence of this technological advance, it often becomes impossible to identify the source of material made available online and whether that material is subject to copyright infringement, trade mark infringement, and online defamation or is an obscene publication.

According to the article 19 of the Universal Declaration of Human Rights (UDHR) 1948, “everyone has the right to freedom to hold opinions without interference, and to seek, receive and import information and ideas though any media regardless of frontiers.” This right is known as “Freedom of expression”. Furthermore, the United Nations, Human Rights Commission expressed that the internet should be used “not only as a means of exchanging and disseminating information, but as a tool to improve the enjoyment of human rights such as freedom of expression”

Although the internet facilitates quick communications between people, it also provides an opportunity for dishonest users to do lasting damage to another’s reputation. This cyber damage not occurs on a wide scale, but also in the inexpensive and most expedient way. As it has been said “sticks and stones can break your bones and even words can hurt you.” The Cyber defamation is intentional infringement to another person’s right to his or her good name. As this type of offence occurs on the internet, it can be seen, heard or read on computers by millions of users worldwide. The victim may be subject to immeasurable moral damage because the information might be incorrect and people might believe it. Therefore, the question raised hear is to determine who is responsible for this online offence such as uploading a file or pictures that contain a defamatory material or sending emails contain such material. Of course, the primary publishers who disseminate the defamatory material will be liable, such as senders of an e-mail messages or web site content providers. However, the issue here is the potential responsibility of the mediator. For instance, Internet service providers (ISPs) and bulletin board operators should be held liable in certain circumstances, because they are able to remove or block offending material. Most countries have attempted to apply and adjust their existing domestic laws to extend to online defamation. However, the issue of potential liability of intermediaries, especially in so far as online defamation is concerned, will require legislative and jurisdictional cooperation to find clear and effective solutions.

Download a pdf copy of the paper via SSRN here.

Vamonos, Julian Assange, al viaje para buscarlos sonidos magicos de Ecuador!

June 22, 2012
English: Julian Assange, photo ("sunny co...

English: Julian Assange, photo (“sunny country background”http://web.archive.org/web/20060712184552/http://iq.org/index.html) (Photo credit: Wikipedia)

Julian Assange and Wikileaks have been fertile sources for blog posts here in the past:

Many readers are likely following the byzantine jurisdictional and procedural challenges waged by Assange in his fight against his extradition from the UK to Sweden (en route to the U.S.) to be “questioned” by the Swedish prosecutor about alleged sexual assault/rape allegations (note that Assange has yet to be formally charged).

Legal pundits and arm chair commentators abound, but I commend readers to Mike Semple Piggot’s excellent podcast  interview of Francis FitzGibbon QC on the Assange asylum bid.

As this political and legal drama unfolds, for those with a penchant for esoteric legal academic analysis on Wikileaks, state secrets and copyright law, James Freedman (Student-at-law, Stanford Law School) has posted “Protecting State Secrets as Intellectual Property: A Strategy for Prosecuting WikiLeaks” Stanford Journal of International Law Vol. 48, No. 1, p. 185, 2012. Here’s the abstract:

Criminal statutes generally deployed against those who leak classified government documents — such as the Espionage Act of 1917 — are ill-equipped to go after third-party international distribution organizations like WikiLeaks. One potential tool that could be used to prosecute WikiLeaks is copyright law. The use of copyright law in this context is rarely mentioned, and when it is, the approach is largely derided by experts, who decry it as contrary to the purposes of copyright. Using copyright to protect state secrets, however, particularly if done through suit in a foreign court, escapes a number of the impediments to a WikiLeaks prosecution, such as the limited scope of narrowly tailored U.S. criminal statutes or the need to apply U.S. law extraterritorially and extradite defendants. Admittedly, using copyright law for these purposes presents its own set of problems, perhaps most intractable under U.S. law, but still significant in the case of suits brought in a foreign court under foreign law. This Note will explore these difficulties, such as the government works issue, potential fair use or fair dealing defenses, as well as various non-legal obstacles to success, eventually reaching the conclusion that prosecuting WikiLeaks internationally for copyright violations is potentially more viable than any of the methods of criminal prosecution heretofore explored publicly by government attorneys and legal scholars.

Download a pdf copy of the paper via SSRN here.

Now, for a little musical tribute to Julian Assange as awaits his fate in the Ecuadorian Embassy in London, England:


Supreme Court of Canada Denies Leave in Domain Name Dispute Case

May 24, 2012

Today, the Supreme Court of Canada denied application for leave to appeal in Lojas Renner S.A. v. Tucows.Com Co. (Ont.) (Civil) (By Leave) (34481) Coram: Deschamps / Fish / Karakatsanis.

The dispute was over the right to the internet domain name “renner.com”. The applicant, Lojas Renner S.A., operates a number of retail department stores in Brazil and owns the registered trademark “Renner”, while the respondent, Tucows.com, is a Canadian domain name registrar which purchased the domain name “renner.com” in 2006 and is the registrant of that domain name with the internationally-recognized non-profit organization, the Internet Corporation for Assigned Names and Numbers (“ICANN”).   Lojas Renner S.A.’s motion to set aside service ex juris of  Tucows.com statement of claim and to stay the action for want of jurisdiction was granted. The Ontario Court of Appeal unanimously allowed Tucows.com’s appeal. The Court of Appeal for Ontario held that Ontario had jurisdiction over the dispute, finding that a domain name is personal property and that presence-based jurisdiction is established if the plaintiff’s servers are physically located in Ontario.

Lojas Renner S.A. unsuccessfully sought leave to appeal on the following issues:

  • Whether the Court of Appeal erred in stating that the policy of the UDRP is to “refer” legitimate disputes to the Court?
  • Whether the Court of Appeal erred in holding that the Superior Court of Ontario’s jurisdiction was “unlimited and unrestricted”?
  • Whether the Court of Appeal erred in making no assessment of whether the claim before it was justiciable?
  • Whether the Court of Appeal erred in determining in the abstract that a domain name was “personal property in Ontario”?
  • Whether the Court of Appeal erred in failing to consider whether it accords with principles of order, fairness and comity to read “intangible” into Rule 17.02 – Rules of Civil Procedure, R.S.O. 1990, Reg. 194, Rules 17.02(a), 17.06(1).

I previously wrote a case comment about this important internet jurisdiction case: “The Internet as Property: The Implications of Tucows.Com Co. v. Lojas Renner S.A., and SOPA”, The Globetrotter, OBA International Law Section Newsletter, Volume 16, No. 1 – December 2011 [pdf].

Jon Garon on “Tidying Up the Internet: Take Down of Unauthorized Content under Copyright, Trademark and Defamation Law”

April 2, 2012

Jon Garon (NKU Chase College of Law) has posted “Tidying Up the Internet: Take Down of Unauthorized Content under Copyright, Trademark and Defamation Law”. Here is the abstract:

As business clients make available an ever-increasing array of online content and services, the specter of liability for inappropriate online content looms large. Still, U.S. federal law protects businesses that adopt appropriate take-down regimes for copyright infringement, defamatory content, and even improper use of competitor’s trademarks. As business clients make available an ever-increasing array of online content and services, the specter of liability for inappropriate online content looms large. Still, federal law protects businesses that adopt appropriate take-down regimes for copyright infringement, defamatory content, and even improper use of competitor’s trademarks. While the percentage of complaints suggests that the notice-and-take-down system is a minor aspect of the Internet media ecology, the existence of the system remains a source of tremendous anger for many. Moreover significant litigation in the past year has renewed the focus on these legal tools to tidy the Internet to cleanse it of unwanted or unauthorized content. This article will focus on the recent activity in the courts and congress regarding the various attempts to deal with unauthorized, unwanted and controversial content available on the Internet.

Download the article from SSRN here.

(h/t Inforrm’s Blog)

Kono and Jurcys, “General Report (Intellectual Property and Private International Law)”

February 7, 2012

Toshiyuki Kono (Kyushu University – Graduate School of Law) and Paulius Jurcys (Kyushu University – Graduate School of Law) have posted the “General Report (Intellectual Property and Private International Law)”.  The abstract reads:

The emergence and development of global business activities, and the inception of the Internet have resulted in the creation of a new field of legal studies concerning cross-border enforcement of intellectual property (IP) rights. This novel area of law is known as private international law and intellectual property. It has attracted much attention from lawyers within the fields of both private international law and intellectual property law. Several landmark decisions have caught the interest of legal practitioners as well as scholars engaged in deeper research activities. So far, several edited books have been published, and a greater amount of legal articles have been written on the subject.

This General Report draws upon 21 national reports received from countries with very divergent legal traditions. National reports were collated from three continents: North America (Canada and the United States), Europe (14 EU Member States, Switzerland and Croatia) and Asia (India, Taiwan, Korea and Japan). The national reports were drafted on the basis of a questionnaire containing two main sections: general legal and institutional framework concerning the enforcement of IP rights, international and regional legal instruments which have been ratified or are applicable in their countries as well as national statutory instruments pertaining to the enforcement of IP rights; and 12 hypothetical case studies.

The General Report consists of four main parts. Parts I and II provide a brief overview of the as well as the institutional framework pertaining to private enforcement of IP rights. Part III deals with various jurisdictional issues which arise in cross-border IP litigation and provides an analysis of the jurisdictional approaches which exist in the countries covered. More specifically, Part II deals with jurisdiction over parties, jurisdiction in contractual and non-contractual disputes, subject-matter (exclusive) jurisdiction, available possibilities for consolidating multiple claims/proceedings, treatment of international parallel proceedings, and choice of court agreements in IP disputes. Part IV is mainly devoted to analyzing various choice-of-law problems that arise in cross-border IP disputes. Namely, it provides an overview and analysis of the approaches concerning the applicable law to the proprietary aspects of IP rights, choice-of-law problems arising in IP infringement cases and contracts for the transfer of IP rights. A further aim of Part III is to depict choice-of-law problems which arise in the context of IP finance. Lastly, Part V focuses on the recognition and enforcement of foreign judgments rendered in IP-related disputes. An Epilogue concludes.

A link to the abstract of the forthcoming General Report is available on SSRN here and will be included in the forthcoming publication, Intellectual Property and Private International Law: Comparative Perspectives, Toshiyuki Kono (ed.) (Hart Publishing, Oxford, 2012).


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