World Intellectual Property Organization (WIPO)

The World Intellectual Property Organization is a specialized agency within the United Nations tasked with creating and administering international treaties on recognition and protection of intellectual property rights.

Liability for Network Service Providers for copyright infringement was discussed during the Diplomatic Conference on the 1996 WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). Article 8 of the WCT created an exclusive right for copyright holders to authorize communication to the public of their works by wire or wireless means. Articles 10 and 14 of the WPPT created a parallel right of making available for fixed performances and phonograms. Policymakers at the diplomatic conference that led to the adoption of the Treaties were aware that these rights would implicate Internet intermediaries that transmit packets across their networks. A U.S. proposal for the draft Basic Proposal for the WCT would have required countries to impose strict liability for Internet intermediaries for the content of communications on their networks and platforms. Member States did not agree to this, and instead adopted an Agreed Statement on the scope of the communication to the public right in Article 8 of the WCT, reflecting the international agreement that Internet intermediaries should not be held liable for merely providing physical facilities for enabling or making a communication.

It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention. It is further understood that nothing in Article 8 precludes a Contracting Party from applying Article 11bis(2)

As there is no requirement for recognition of Internet intermediary liability in existing international intellectual property treaties, and no harmonized principles for secondary copyright liability across countries, until recently WIPO has not been in the forefront of developments on Internet intermediary liability and Three Strikes regimes.

As this website documents, Graduated Response or Three Strikes regimes have been developed in national laws, agreements, and policies, and trans-nationally via plurilateral trade agreements (the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership Agreement that is currently being negotiated). From civil society’s perspective, the multistakeholder policy dialogues about online IP enforcement regimes and the roles and responsibilities of Internet intermediaries have taken place at the OECD [Link to OECD page] and at the annual Internet Governance Forum meetings.

However, in recent years there have been increasing calls for WIPO to take a role in creating harmonized principles for Internet intermediary liability. In relation to copyright secondary liability, the WIPO Secretariat proposed the Responsibility of Internet Service Providers as a topic for future work of the WIPO Standing Committee on Copyright and Related Rights in 2002. In recent years, both the EU and US delegations have expressed interest in secondary/ indirect liability for online copyright infringement as a topic for future work of WIPO’s Copyright Committee. In December 2011 the Russian Federation delegation proposed that the WIPO Advisory Committee on Enforcement look at Internet intermediary liability and measures to combat online copyright. WIPO Secretariat staff have commissioned leading copyright scholars to produce reports on Internet intermediary liability issues in 1999, 2005, and 2011. WIPO has hosted seminars on these topics in 1999, 2005 and 2011.

The issue of limitations on copyright liability for Internet intermediaries is currently being considered at the SCCR as part of the important discussion on copyright exceptions to facilitate cross-border education and research. (See “Provisional Working Document towards an Appropriate International Legal Instrument (in whatever form) on Limitations and Exceptions for Educational, Teaching and Research Institutions and Persons with other Disabilities containing Comments and Textual Suggestions”, SCCR/24/8 Prov, July 31, 2012 at paragraph 77).

WIPO has also expressed interest in working on harmonized standards for Internet intermediary liability for trademark infringement. In a February 2011 report on Trademarks and the Internet, the WIPO Secretariat proposed that the Standing Committee on Trademarks work on developing agreed standards with respect to the primary liability of Internet intermediaries for the infringement of third parties’ trademarks” (paragraph 69), or alternatively, on:

 “attempting to develop agreed standards for the determination of the presence or absence of secondary liability of Internet intermediaries. Such standards would offer an opportunity for stakeholders to achieve a degree of legal and transactional predictability, for example through developing safe harbors provisions. In such an approach, consideration could be given to issues such as the role played by the Internet intermediary in relation to alleged trademark infringement, the degree of knowledge and control by the Internet intermediary with respect to the allegedly infringing activity by a user of its services, and the modalities of any response by the Internet intermediary when informed of such activity.” (paragraph 70) 

This has not been pursued at the time of posting.

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Timeline of key WIPO reports and initiatives in this area:

1999

Workshop

WIPO Workshop on Service Provider Liability, December 9-10, 1999

Report

Kamiel Koelman and Prof. Bernt Hugenholtz, Online Service Provider Liability for Copyright Infringement, presented at WIPO Workshop, December 9-10, 1999.

 

2002

Report

Short Description of Possible Subjects for Future Review by the Standing Committee on Copyright and Related Rights, prepared by WIPO Secretariat for SCCR 8th session, November 2002.

 

2005

Report

Charlotte Waelde and Lillian Edwards, Online Intermediaries and Copyright Liability, April 2005.

Seminar

WIPO Seminar on Copyright and Internet intermediaries, April 18, 2005.

Program, with links to presentations.

Commentary on seminar and discussion of IFPI and MPA Europe’s Three Strikes/ Graduated Response ISP Code of Conduct.

MPA’s 2005 ISP-Film Sector Voluntary Code of Conduct and IFPI’s similar proposal to ETNO, reported by European Digital Rights, April 2005.

 

2011

SCCR Reports

Lillian Edwards, The Role and Responsibility of Internet Intermediaries in the Field of Copyright and Related Rights, June 2011 [pdf].

David Seng, Comparative Analysis of National Approaches of the Liability of the Internet Intermediaries, June 2011 [pdf].

SCT Report

WIPO Secretariat, Trademarks and the Internet, SCT/25/3, February 2011.

Seminars

May 18, 2011 - Joint WIPO-Internet Society Thematic Workshop, on Internet intermediaries in the Field of Copyright, WSIS Forum, Geneva.

May 25-26, 2011 - WIPO Asia Regional Seminar on Copyright and Internet Intermediaries, Bangkok, Thailand.

June 22, 2011 – WIPO-ISOC organized SCCR Side Event on the Role and Responsibility of Internet Intermediaries in the Field of Copyright, Geneva. Program, with links to presentations from Professor Lillian Edwards, President of HADOPI (France), Korean Copyright Commission, and Ted Shapiro (Motion Picture Association Europe)

September 29, 2011 – Copyright Under a Magnifying Glass: Thought-Provoking Ideas, Workshop co-organized by WIPO and ISOC, Internet Governance Forum, Nairobi, Kenya.

 

2012

Provisional Working Document towards an Appropriate International Legal Instrument (in whatever form) on Limitations and Exceptions for Educational, Teaching and Research Institutions and Persons with other Disabilities containing Comments and Textual Suggestions, SCCR/24/8/Prov., July 31, 2012 (paragraph 77).

 

Acknowledgement: EFF thanks Gwen Hinze, EFF Policy Fellow, for producing this analysis (December 2012).