Institute for Internet Policy & Law @ Beijing Normal University

A group of IP scholars and social activists met in the ambit of Gobal Research Network on Limitations and Exceptions at Washington College of Law, American University in the 3rd week of September. This was the 3rd meetings on the research topic since the establishment of the Gobal Network. With the participatant from North America, Latin America, Europe, Asia-Pacific and Africa (working in US though), the Network is able to stimulate dynamic discussion on globally compatible copyright flexibility model. Although there were many debates and misunderstanding on the proposal “open” model, particularly between Latin American civil law tradition and American common law tradition, consensus is gradually being built. The research on 3-step test is also fruitful. After the meeting of Day one, some participants took a long trip to Maryland to meet the TPP negotiators from all Member States except Canada and Mexico, both of which will not join negotiation until next round.

The Discussions show that there are many creative industries that are relying on copyright flexibility and newly opened-up legal model (e.g. Singapore and Isreal) exerts positive economic effect on GDP and employment. The so-called open model does contain a few new elements that were either overlooked or ruled out. Firstly, open model is shifting the defensive fair use to proactive users’ right, which has been confirmed in Canadian case law; secondly, open model may incorporate the legal presumption for the listed use, which would ease the burden of proof from the users; thirdly, 3-step test can be used prospectively to enable new exceptions, rather than to limit the existing exceptions.

It is interesting to witness the back and forth of the copyright reform in a couple of countries. While Panama enacted a restrict copyright law recently, Brazil is experimenting some flexible approach. China’s 3rd Revision of Copyright Law is another focus of internation attention. For more information, please refer to my recent paper that covers all the important aspects of the 2nd Draft at WCL website.

At ALAC gTLD-WG meeting on Aug. 27th, I suggested that Implementation of Trademark Clearinghouse (TMCH) be a rolling out issue for the group to comment. It was agree by the group.

After TMCH Meeting in Brussels on August 20-21, 2012, the problems existing in the current TMCH implementation model have become widely aware in the community. Although TMCH providers is scheduled to begin operating in October (3 weeks from now), ICANN’s planned implementation models for Sunrise and Trademark claims are apparently not supported by a majority of the new gTLD applicants. The current model’s complexity, restrictions on new registries and high costs are widely criticized.

At-Large community concerns that the problems in the current model may be against the public interests for the following reasons.

1. Burdensome Cost Model to New Registries from Developing Countries

On June 1, 2012, ICANN posted a Preliminary Cost Model projecting the potential fees to be charged to TLD registries and trademark holders to fund the TMCH, i.e. upfront fees $7-10k per registry and the $150 per trademark were “upper bands” of the fees.

Since the proposed cost model was strongly disputed at Brussels Meeting, the ICANN-delegated providers are now open to considering
other models including a transaction model whereby there would be a fixed set up fee paid by each registry (for each TLD) and a variable transaction based fee.

The proposed fees are believed expensive to most new gTLD registries. For new registries from the developing countries that have just paid off high application fees, it would become extraordinary burdensome for their future operation. The little-used Application Support Program is unlikely to offer any help as well.

At-Large community therefore suggests ICANN consider setting up Implementation Support Program to help the new gTLD registries from developing countries to handle the complicated and expensive TMCH implementation.

2. One Set Does Fit All

The current TMCH model uniformly applies to all the gTLD registries, irrespective of their difference. As a result, there may be a couple of registries obliged to pay for the TMCH services that are not need by them. In a hypothetical case, say “.IGO” for intergovernmental international organizations’ names only, the registry has to pay for TMCH services although no trademark will be eligible for registration under .IGO because IGO names are not “trademarkable” under the Paris  Convention (with more than 100 member states).

On the other hand, uniform TMCH may not provide the tailored services that are really needed by the registries. For example, those GEO TLDs or IDN TLDs would like to restrict the Sunrise Period to only those rights holders having trademark registrations in their geo-regions or character set. But they would not be able to do so without setting up a completely separate process with the TMCH at additional cost or doing by themselves. This would additionally burdensome to registries, particularly from developing countries.

It seems that the ICANN drafted model as proposed / planned potentially limits market flexibility for variations of approaches to
sunrise and therefore drives the (per TLD) work on custom sunrises back to the TMCH. Instead,  more open and flexible model deserves further exploration.

3. Not Actively Soliciting Consensus

Since the implementation will be very imminent and there still lacks of consensus in a variety of stakeholder groups on almost all aspects of the implementation model, At-Large community seriously concerns whether it would be implemented timely for the new gTLD program. Since the much-debatable Brussels meeting, there is no follow-up meeting scheduled as planned.

ALAC therefore advises the Board to take immediate action to ensure that ICANN is seen as moving forward with the TMCH in public interests and with community consensus.

4. Lack of Transparency

ICANN so far refuses to disclose a series of key documents on selectionof TMCH provider and TMCH implementation model, including Executed contracts for the provision of Trademark Clearinghouse services and Documents on cost and financial models regarding the operation of the Trademark Clearinghouse.

ALAC therefore request the documents be timely release to enable the community to access the critical information on TMCH.

8月31日，美国新罕布什尔大学法学院院长John T. Broderick, Jr.教授、副院长Karen J. Borgstrom教授和富兰克林皮尔斯知识产权中心主任Mary Wong教授一行三人访问了互联网政策与法律研究中心。主任薛虹教授与之进行了两轮会谈。新罕布什尔大学法学院是全美最好的知识产权院校之一，其知识产权项目在全美的法学院中尤其突出。

美方院长对北师大的学科实力表示认可，表示愿与我中心合作，为学院学生提供中美优质法律教育资源。双方还就在知识产权、国际刑法等领域合作的具体方式、执行程序、培养项目等问题进行了磋商，达成了初步的合作意向。会谈最后，赵秉志院长向来宾赠送了法学两院的纪念品。

新罕布什尔大学法学院的来访推动了我院法学教育尤其是知识产权学科的国际化，增加了我院及互联网政策与法律研究中心在国际上的知名度，并且为法学两院青年学子提供了更多教育资源和国际机会。

ISOC’s Global iNet Meeting was on April 22-24, 2012 in Geneva. The meeting is also ISOC’s 20th anniversary and a group of Internet pioneers were honored in the Hall of Fame.The logistic arrangement was fantastic. It was the most thoughtful and sweet-hearted conference I ever attended. I got chocolate and follows in my room immediately after my presentation.

What’s interesting is the two legal panels on Jurisdiction and Copyright Respectively. I was on the Copyright panel. There were fierce debate on every dimension, from stimulation of artistic innovation to free flow of information. When someone attempted to state that IPRs were HRs, it was suddenly rebutted by Mr. Bertrand for lying. Real musicians showed up and revealed that high prices did not go to the creators but to the “music industry”. I talked about the 3rd revision to Chinese Copyright Law and open innovation model.

At closing speech, Francis Gurry, the DG of WIPO, presented his concern about the rival to copyright on the Internet. The impressive point he made was that copyright should be reform to ensure legitimate use of the work would be as easy as pirate ones.

Professor Hong Xue’s new Book is an overhaul of the academic research on international intellectual property law in China. Since China joined the international treaty system of intellectual property rights, the relevant research has primarily been orienting introduction, interpretation and incorporation of the contents of international legal documents, and assessment and examination of the compliance and/or consistence of the Chinese laws with the international laws that China has adhered to. Although the research no doubt provided valuable resources for China to respond to the acute trade pressure from the West and gradually fit in the international intellectual property law system, its backward-looking and responsive methodology can no longer keep pace with the changing situation, internationally and domestically, and its contents need completely updated so as to be continuously valuable for domestic and diplomatic policy-making and implementation.

Since the dawn of 21^st Century, international intellectual property law has been changing dramatically, along with the changing situation of international politics, economy, culture and technology. The phenomena of North-South issues, conflicts of IP (intellectual property rights) v. PI (public interests), prolific international regimes and their shifting, more inter-governmental international organizations (IGOs) emerging as new actors and/or fora for intellectual property issues, and multilateral as well as plurilateral and bilateral agreements taking shaping, are redefining the development of international intellectual property law. Internationally, intellectual property issues have been scrutinized under the macro topics such as free trade, market competition, consumer protection, communication rights and free speech, rather than being merely restricted to the private rights and their protection per se.

In the best of the times or the worst of the times, the Book attempts to capture all the key issues of the current international intellectual property law and reassess the fundamental theoretical framework and critical public policy issues involved. The Book is therefore a timely and forceful upbeat in the rhythm of new era of international intellectual property law in China.

The Book depicts the two driving forces behind the new international intellectual property law, i.e. maximalism and reformism, and their primary outcomes, interactions and intertwinement. The maximalist approach, featuring with cookie-cut model and ever-growing and expansive protection for intellectual property rights, has been pushed strongly by developing countries and intellectual property industry. Although Anti-Counterfeit Trade Agreement (ACTA), Trans-Pacific Partnership (TPP) and a variety of bilateral agreements are gaining ground, the negative effect on competition, development and human rights shall not be overlooked. Unlike any other Chinese books that look upon to or lean to learn from the international intellectual property law, this Book reviews both the theoretical basis and legal presentations of maximalism critically.

On the other than, the open communication environment facilitated by the Internet, emerging powers from Global South and, particularly, the global access to knowledge movement, form the strong resistance against maximalism and a vigorous reformative force for new international intellectual property law that is pro-development and public interest oriented. The Book is very first academic addition in China to address the new landscape of international intellectual property law through searching down to the two driving forces and their outside presentations. Such the theoretical framework, critical thinking and new methodology signalizes the new direction on research of international intellectual property law.

In addition to the legal study quality, the Book is multi-disciplinary research that absorbs the latest academic achievements on international political economy, international relation, sociology, Internet technology and Internet governance. The Book contains the most refreshed information and original analysis updated to 2011, when the Book was completed. The chapters on enforcement measures on ACTA, TPP, and ICANN new gTLD program have never been researched in China and most parts of the world. It is believed that the Book bring the Chinese study on international intellectual property law to a new stage that is comparable with the most advanced and acknowledged research in the world.