Intellectual Property Protection in the ccTLDs: The Philippines J. Emmanuel M. Disini J. Emmanuel M. Disini dotPhone dotPhone WIPO Conference on Intellectual Property Questions Relating to the ccTLDs Geneva, Switzerland Geneva, Switzerland February 20, 2001 February 20, 2001
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Intellectual Property Protection in the ccTLDs: The ... · Intellectual Property Protection in the ccTLDs: ... Levi’s, Shell, Disney, Nike) Philippine IPR Laws ... E-Commerce Act
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Intellectual PropertyProtection in the ccTLDs:
The Philippines
J. Emmanuel M. DisiniJ. Emmanuel M. DisinidotPhonedotPhone
WIPO Conference on Intellectual PropertyQuestions Relating to the ccTLDs
νν Law EnforcementLaw Enforcement:: Largely funded and drivenby private sector efforts: Business Software Alliance(Microsoft) and Large Firms (Sony, Levi’s, Shell, Disney,Nike)
Philippine IPR Laws
νν IPR Treaties and ConventionsIPR Treaties and Conventions• Berne Convention for the Protection of Literary
and Artistic Works• Paris Convention for the Protection of Industrial
Property• International Convention for the Protection of
Performers, Producers of Phonographs andBroadcasting Organizations
• Agreement on Trade-Related Aspects ofIntellectual Property Rights (TRIPS)
• WIPO Performances and Phonograms Treaty• WIPO Copyright Treaty• Convention Establishing the World Intellectual
Property Organization
Domain Name Dispute
PLDT v. PLDTI
Causes of ActionCauses of Action
νν No inherent right toNo inherent right to pldt pldt.com, .com, genericgenericνν No legal capacity to sueNo legal capacity to sueνν PLDT is negligentPLDT is negligentνν Jurisdiction over Host and NSIJurisdiction over Host and NSIνν Freedom of ExpressionFreedom of Expression
νν Improper use of Trade Name (IP Code)Improper use of Trade Name (IP Code)νν Unfair CompetitionUnfair Competitionνν Abuse of Right/Bad FaithAbuse of Right/Bad Faith
DefensesDefenses
E-Commerce Act
νν Signed into Law June 14, 2000Signed into Law June 14, 2000
νν Based on UNCITRAL Model Law onBased on UNCITRAL Model Law onElectronic CommerceElectronic Commerce
νν Legal recognition of electronicLegal recognition of electronicdocumentsdocuments
νν Declares electronic documentsDeclares electronic documentsadmissible in evidenceadmissible in evidence
νν Hacking is now a crimeHacking is now a crime
E-Commerce ActService Provider Liability
(i) The service provider: (1) does not have actual knowledge, or (2)is not aware of the facts or circumstances from which it is apparent, thatthe making, publication, dissemination or distribution of such material isunlawful or infringes any rights subsisting in or in relation to such material,or (3) having become aware, advises the affected parties within areasonable time, to refer the matter to the appropriate authority or, atthe option of the parties, to avail of alternative modes of disputeresolution;
(ii) The service provider does not knowingly receive a financialbenefit directly attributable to the unlawful or infringing activity; and,
(iii) The service provider does not directly commit any infringementor other unlawful act and does not induce or cause another person orparty to commit any infringement or other unlawful act and/or does notbenefit financially from the infringing activity or unlawful act of anotherperson or party (Implementing Rules and Regulations of the ECA).
E-Commerce ActService Provider Liabilityν Basically codified jurisprudence on
intermediary liabilityν Service Provider broadly defined to include
ccTLDs, Telcos, Cellcos, ISPs, ASPsν Elements to avoid liability for IPR
infringement:
¬No knowledge or awareness of infringement¬No financial benefit¬No direct or indirect commission ofinfringement
E-Commerce ActOn-Line Piracy
SEC. 33. Penalties. - The following Acts shall be penalized by fineand/or imprisonment, as follows: x x x x x x x x x
b) Piracy or the unauthorized copying, reproduction,dissemination, distribution, importation, use, removal, alteration,substitution, modification, storage, uploading, downloading,communication, making available to the public, or broadcasting ofprotected material, electronic signature or copyrighted worksincluding legally protected sound recordings or phonograms orinformation material on protected works, through the use oftelecommunication networks, such as, but not limited to, theinternet, in a manner that infringes intellectual property rights shallbe punished by a minimum fine of one hundred thousand pesos(P100,000.00) and a maximum commensurate to the damageincurred and a mandatory imprisonment of six (6) months to three (3)years;
E-Commerce ActOn-Line Piracyν Lobbied by Business Software Allianceν Same criminal liability as the crime of hacking
(note the unlimited civil liability)ν Examples of on-line piracy:
¬Downloading or forwarding of MP3s, images,video¬Unauthorized use of marks which constitutetrademark infringement¬Unauthorized framing
dotPhone UDRP
ν Based mainly upon UDRP and UDRP Rules
ν Deemed necessary because of anticipatedsale of domain names internationally
ν Minor changes introduced to “improve” UDRP
ν Accredited dispute resolution provider: WIPO
dotPhone UDRP:Changes
ν Same warranty butlimited only to the lawseffective in thejurisdiction where theregistrant resides orconducts business.
ν Registrant warrantsthat the registrationdoes not violate therights of third parties
ICANN dotPhone
REASON: It would be unfair to hold the registrantresponsible for violating the rights of third partiesestablished by laws which the registrant could notreasonably have known.
dotPhone UDRP:Changes
ν Clause is deleted. Useof name to expressnegative opinions onthe trademark shouldbe allowed underFreedom of Expression
ν Period is extended to30 days to give thelitigant sufficient timeto engage counsel andprepare the complaint
ν Defense of good faith isrejected if the name isused to tarnish thetrademark or servicemark at issue
ν Losing registrant has10 days to file a suit tostay the implemen-tation of decision