The
umpteenth revision to the regulations on trademark conflicts issued by a social
network and some recent cases call to mind a question I have been mulling over
for a long time, one in fact that was addressed by an outstanding presentation
by Andy Ramos at the First Madrid Law Conference.
Those of us
who deal in intellectual and industrial property matters have traditionally
grounded ourselves in national and Community legislation and international treaties,
where appropriate supplemented by the applicable rules of procedure.
Even so,
for some years now, it has been necessary to top off our knowledge of these
aspects with the rules for dealing with disputes arising from improper
trademark use, personality rights, copyright, etc. set by each social network.
Each
network sets its own rules, and what are purportedly the social network's terms
of use take on the effect of a body of legal and procedural rules that have to
be followed (as far as possible) when trying to settle the growing number of
disputes involving our clients. A cursory review indicates that as things stand
today, one way or another some 80 % of our activities involve the Internet and
social networks.
Let me say
that I have nothing against rules that fall outside the authority of the State,
and we all are aware that there have been a number of instances of successful
self-regulatory systems. Looking at the UDRP rules governing disputes between
trademarks and domain names shows that the overwhelming majority of cases are
settled by panelists under the auspices of institutions not under the authority
of any State, one notable example being the WIPO Arbitration and Mediation Center on account of the large number of cases dealt with and the quality of
its services.
However,
problems may arise where the rules have not grown out of consensus but rather
have been dictated by the social network's owner and administrator. These
problems are compounded where the rules have been made based more on a U.S.
than on a European approach to law (indeed, cases of disputes on Chinese social
networks have already arisen, a foretaste of things to come). Matters become
more complicated still where each social network has its own separate rules.
And to make matters worse, "policy", that is, how the rules are
interpreted, depends on the individual views held by the management of each
social network.
Not long
ago I was involved in a dispute between two parties based in northwestern Spain
over copyright on a social network. The parties overseeing the conflict started
out by citing the Digital Millennium Copyright Act, fair use, and other
recondite rules, to our client's bafflement. As might be expected, references
to Spain's Copyright Act and Community Directives were conspicuous by their
absence.
A more
serious example involved the State Prosecutor's Office in a case in which the
image rights of a minor had been infringed, but it proved to be impossible to
enforce any of the measures sought outside the borders of Spain, even though
the images had spread around the world.
There are
many more examples of cases like these that crop up daily. Establishing a
suitable legal framework of uniformity for these situations will require considerable
deliberation.
There has
been talk of a principle of territoriality, whereby "business in my
territory is done under the laws of my territory", but this is only a
partial solution given the non-territorial nature of social networks already
mentioned above.
The authorities of the European Union are seeking to exert an influence on disputes arising on social networks by harmonizing European rules.
There is
still a long road ahead of us, but there are also some examples of successful
approaches showing that harmonized regulation can significantly decrease the
number of disputes. Territorial regulations could then be restricted to those
disputes that are strictly local in nature.
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