Re: [ifwp] WIPO's Washington Meeting

["Martin B. Schwimmer" <martys@interport.net>]

Mr. Feld wrote:

>I spoke for 15 minutes.  My points breifly were:
>
>1) While we applaud the more open nature of this process than previously 
>demonstrated by WIPO, it exceeds the scope envisioned by the White Paper, 
>it is therefore in danger of losing any validity it might have.
>


Can you expand on how WIPO is expanding the scope?  And why is its scope
limited by the USG anyway, WIPO has a mandate without the USG.  As the
World Intellectual Property Organization, it could hold these hearings
regardless of whether there ever was a White Paper.  In fact, WIPO is
conducting a survey on the definition of what constitutes use of a
trademark on the Internet in general.  Why is this not a public service?
There are not many international intellectual property organizations -
there is no "trade association" of trademark or copyright offices for
example.  Other  organizations, such as AIPPI and INTA are conducting
surveys into these problems and although such studies will benefit all
users of the Internet, these organizations are composed mostly of
practicing lawyers, and therefore subject to the criticism that the duties
to these clients will influence the results (which view I acknowledge but
do not necessarily endorse).

Prof. Mueller has indicated that there has been a dearth of actual
empirical data in this debate, why get on WIPO's case for holding hearings?




>2) Regulation by a guild is no more attractive than regulation by 
>government.  In fact, it is less attractive, as government has an 
>obligation to protect the public interest.
>

Who has proposed regulation by guild?  Can you expand your view on proper
regulation?


>3) Had the "enhancement of commerce" test demanded by TM holders for new 
>domains been applied to the Internet as a whole in 1990, we would not now 
>have a commercial Internet.

Which "TM holders" demand an "enhancement of commerce" test?   INTA's most
recent policy statement does not pose such a test, and it is not
appropriate to equate INTA with "TM holders."  These are diverse large
organizations with a diverse population with diverse views (Carl Oppedahl
is a member of INTA and he is not bound by all of INTA's views and vice
versa) (incidentally, Juno Online is a member of INTA, Juno Lighting is
not, Prema Toy is not a member, although for all I know it's lawyers are).  

It is not appropriate to treat all DN holders as a monolith and then
ascribe to them the qualities of the people who run the porn site
bertandernie.com.  Don't treat TM holders as a monolithic entity.  


>
>3a) In the Free Market, entrepreneurs create opportunities.  They do not 
>justify these in advance by proving to some group of vested interests that 
>these new opportunities will "enhance commerce." (read, will promote 
>interests of existing stakeholders)
>
>4) WIPO should trust the free market to resolve the existing difficulties.  
>No crisis exists that requires immediate and drastic intervention.  In less 
>than five years, e-commerce has grown from practically nothing to over $3 
>Billion (US), with projections for growth in the next five years to $300 
>billion (US).  It is absurd to argue (as the TM interests have) that the 
>medium is and will remain a commercial failure unless TM holders get their 
>way.

It's an absurd argument which "TM Interests" don't make.  Again, either
don't treat TM Interests as a monolithic entity, or don't attribute absurd
mischaracterizations to TM representatives.  INTA's most recent testimony
before Congress (http://www.inta.org/telcm.htm), states in part:

"There has been an explosion of commercial activity on the Internet -
beyond what anyone ever expected. According to a study by the United States
Department of Commerce: Over 10 million people in the U.S. and Canada
bought something online by the end of 1997 - an increase from 4.7 million
six months before. And overall, the digital economy is growing at double
the rate of the general economy - representing more than 8% of the U.S.
gross domestic product.6  

So as long as we are talking in generalities, TM Interests do NOT think the
medium is a commercial failure.  TM interests do believe that in any sphere
of commerce, brand protection is necessary, which is not an absurd thought.
 Healthy mature economies do not base themselves on the counterfeiting sector.
 


>
>5) cc:TLDs should not be harmonized.  They provide laboritories for new 
>SLDs and new approaches to Internet government.
>

That's a good point.  WIPO (or whoever) should do a study, where they
compare ccTLDs like that of Sweden with that of Tonga, and compare the
incidences of piracy, spamming and other activities in those ccTLDs.

I assume the DNRC will support such a comparative study of domain name
regulation and its effects of domain name and Internet abuses.



>The panel took exception to my stance on the process.  The TM holders took 
>exception to just about everything else.  It was a lively discussion.
>
>I will say that everyone was unfailingly polite.  It remains to be seen 
>whether it has any impact.  Of course, if no one else echoes DNRC's 
>concerns, it will be relatively easy to dismiss us as unrepresentative.

Well, how many members do you have?