Page 1 IP issues on the Internet: copyright and related rights protection International Chamber of Commerce, Russia Moscow– December 1, 2014 C OOPERATION BETWEEN II S AND RH S FOR IPR S PROTECTION ON THE I NTERNET : THE INTERNATIONAL BEST PRACTICES

Page 2 INDEX  How IIs COOPERATE  T HE ACTUAL SCENARIO IN THE USA  T HE ACTUAL SCENARIO IN E UROPE  T HE ACTUAL SCENARIO IN I TALY

Page 3 H OW II S COOPERATE

Page 4 How IIs cooperate  By setting up specific services for performing accurate internal investigations on infringements;  By adopting simplified procedures to verify violations and to cooperate with right holders for the prompt removal of illegal contents ;  Through the filling and sending of specific application forms, it is possible to report illegal content in an easy way.

Page 5 Has introduced a specific section dedicated to copyright. It is possible to manage uploaded content, make reports, notifications and counter-notifications for copyright infringements.

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Page 7 There is also a section dedicated to education to copyright, explaining the basic concepts of copyright.

Page 8 A specific section of the FAQs on copyright with hyperlinks to websites of Institutions involved in IP.

Page 9 Offers a specific section to copyright, with information and procedures to report infringements.

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Page 11 There is a section in the Help Center dedicated to copyright infringements and to basic principles on IPR.

Page 12, in its help center, has a simplified procedure for the removal of illegal content.

Page 13 Moreover, cooperates with the “Chilling Effect” project, undertaken by the Electronic Frontier Foundation in collaboration with Harvard, Stanford, Berkeley, San Francisco University, University of Maine, George Washington School of Law and Santa Clara University School of Law.  This project is a tool for recipients of alerts aimed at helping them to understand the mechanisms and procedures involved.  There is also a database containing all reports and removal of illegal content from the Internet.  The project also illustrates the main innovations in terms of case law and legislation on online copyright infringement.

Page 14 T HE ACTUAL SCENARIO IN THE U.S.A.

Page 15 The actual scenario in the U.S.A. 1/3  Since February 2013 is active the Copyright Alert System (CAS), resulted from the voluntary agreement between RHs and ISPs.  In case of a report from the monitoring system, the CAS provides that ISPs send up electronic warnings notifying subscribers of alleged copyright infringements.  If a copyright infringement is reported, despite the final warning, ISPs have to implement “mitigation measures” (i.e. temporary reductions of internet speeds or redirecting to other pages).

Page 16 The actual scenario in the U.S.A. 2/3  In May 2012, the American Association of Advertising Agencies (AAA) and the Association of National Advertisers (ANA) set up a Statement of Best Practice for the advertising on sites dedicated to infringement.  The Best Practice encourages brand-owners and their media agencies to include specific conditions in media placement contracts and in insertion orders with AD networks and other intermediaries involved, such as:

Page 17 The actual scenario in the U.S.A. 3/3 The RogueBlock® program. Is a collaborative effort between the IACC (International Anti-Counterfeiting Coalition) and the payment industry. It provides a system for RHs to report the selling of counterfeited products directly to credit card and payment processing networks.  In order to carry out this program, IACC developed an access-controlled portal system to facilitate the flow of information between participating RHs, the Card Networks, IACC and the National Intellectual Property Rights Coordination Center (the “IPR Center”), by using a IACC portal to share information.

Page 18 T HE ACTUAL SCENARIO IN E UROPE

Page 19 The actual scenario in Europe In 2011 a MoU was signed between major RHs (Lacoste, Burberry, LVMH Group, Unilever) and Internet platforms (Amazon, Ebay).  This MoU brings together a representative group of leading RHs and IIs in a joint effort to reduce the selling of counterfeit goods through e-commerce.  This MoU, renewed for 2 years, strikes a fair balance between the interests of the parties concerned and represents a pragmatic step for the fight against piracy on the Internet.

Page 20 The actual scenario in Europe The European MoU provides for several aspects:  N&TD procedures and their use;  Reporting system;  RHs use of N&TD systems;  Pro-active and preventive measures;  Cooperation, including sharing of information between RHs and IIs.

Page 21 N&TD : a cornerstone of the MoU All Signatories hold that notice and take-down procedures (NTD) are indispensable measures in the fight against the online sale of counterfeits. In the context of this MoU, NTD rules provide for: i.a mechanism to remove individual offers of alleged counterfeit items from the sites of the Internet Platforms and ii. a mechanism to notify Internet Platforms about counterfeit selling users (seller-based notifications).

Page 22 N&TD : a cornerstone of the MoU  Since the introduction of the MoU, some Internet Platforms have reported that it takes them up to 24 hours to remove an online offer (also known as a listing), but occasionally up to 48 hours; for others, it takes 2 – 5 hours.  Others say contested offers are removed the same day or early the following day. However, Rights Owners have reported differences in processing speed by the same Internet Platform across different Member States.

Page 23 PPMs: a critical measure for effectively fighting counterfeiting  PPMs range from technical measures, such as the ability for an Internet Platform to detect the use of certain keywords, or on offers of pre-release content, to information-sharing with Internet Platforms on counterfeit product indicators and the modus operandi of counterfeit sellers.  Some Internet Platforms reported that they use certain detection technologies and preemptive takedowns.

Page 24 Application of the MoU / Results  According to some Internet Platforms, since mid-2011, it had been a noticeable decrease (20%) in the number of NTD reports being filed by Rights Owners, which probably corresponds to a decrease in the number of suspicious listings visible on the Platform. Over the same period, it has been noticed that proactive removals of suspicious items by PPMs had almost doubled.  Another major Internet Platform reported that in the third quarter of 2012, over sellers saw their accounts blocked or severely restricted after they were found to have posted suspicious listings of goods bearing MoU Signatories’ brands.

Page 25 The actual scenario in Europe On December 2013, the Digital Trading Standard Group (DTSG) set up the UK Good Practice Principles for the trading of Digital Display Advertising, These principles aim at reducing the risk display advertising misplacement on digital media properties, protecting brands and the integrity of digital advertising. Digital transactions have to comply with the terms or policies pursuant to UK Good Practice Principles.

Page 26 The actual scenario in Europe In France, three Cooperation Charters against piracy were signed: a)in 2009, between RHs and e-commerce platforms; b) in 2012, between RHs and platforms classifieds on the Internet; c)In 2012, between RHs and Postal Operators. These Charters − establishing mutual obligations between Internet sales platforms and trademark holders − aim at avoiding the placing of counterfeit goods online, rather than simply providing the withdrawing of such offers following a notification.

Page 27 T HE ACTUAL SCENARIO IN I TALY

Page 28 Italy out of the “Watch List”  In April 2014, the USTR, after 25 consecutive years, has removed Italy from the Watch List contained into the “Special 301”, i.e. the report of the adequacy and effectiveness of actions in the field of intellectual property drafted by U.S. trading partners. During the 2013, the turnover of piracy in Italy was estimated in a range between 3.5. and 7 billion euro.

Page 29 The AGCOM Regulation  The Regulation for the protection of copyright on electronic communication networks set forth by the Italian Communication Authority (AGCOM).  The Regulation, entered into force in March 31, 2014, provides for the promotion of legal online content and the enforcement of IP rights.

Page 30 Procedure  Complaint submitted by copyright holders by using the template made ​​ available on the Authority’s website  The template must be filled in each single part, otherwise the notification is dismissed  The notification must give a proof of ownership of the copyright and report the URL of the webpage where the alleged infringing content is located

Page 31 Procedure (2)  The procedure cannot be undertaken if a litigation is pending between the same parties for the same reason before a Court  However this is quite unlikely as the AGCom procedure is much faster and cheaper than a lawsuit  Upon receiving the notification, AGCom forward it to ISPs and, if possible, to uploaders and editors of web- sites and web-pages

Page 32 Measures  At the end of the procedure, if the Authority holds that a violation has been committed, it orders to ISPs to take the necessary measures, which must be taken within three days after the notification  If the illegal content is hosted on servers located within the Italian territory, AGCom will order to hosting providers to remove the infringing content from the website  In case of massive violations (however a definition of “massive violations” is not provided by the regulation) or server located abroad, AGCom will order to mere conduit providers to disable the access to the infringing content

Page 33 Urgent Procedure  In case of “serious or massive” infringements of copyrights  The notification will be forwarded to ISPs within three days after the receipt of the application  ISPs have three days for submitting arguments  ISPs will be expected to comply with the orders of the Authority within two days after the notification of Authority’s orders

Page 34 Critical issues  Violation of the right to defense: the Regulation grants a too short period between the notification to ISPs and their reply, which jeopardizes constitutional rights and does not provide a balance between the opposite interests of intermediary operators and IPRs holders.  The new copyright enforcement regulation also holds an obligation on ISPs to disable access to contested websites, even if the application of this measure could inhibit the access to contents other than those reported by the copyright holder.

Page 35 Critical issues (2)  This provision seems to conflict with the views expressed by the Court of Justice in Case C-314/12, Deutsche Wikom Telekabel, according to which: it is incompatible with the weighing of the fundamental rights of the parties to prohibit an internet service provider generally and without ordering specific measures from allowing its customers to access a particular website that infringes copyright.

Page 36 Which future?  The Regulation has been contested before the Administrative Court by Consumer and ISPs associations  The case is still pending before the Administrative Court of Rome  The above mentioned associations also stated that they are willing to take a legal action also before the European Court of Justice and before the European Court of Human Rights.

Page 37 A MoU for the protection of PDO and PGI Signed on May 7, 2014, between the Italian Ministry of Agricoltural, Food and Forestry Policies, eBay and the Italian Association of Geographic Indication Consortia (AICIG). It provides a simplified procedure for reporting and easily removing conunterfeited goods from eBay. eBay agreed to remove ads and offers violating the regulations for PDO and PGI products. At the same time, the Central Inspectorate for Food Quality and Fraud Repression (ICQRF) will exercise its power to protect products throughout the European Union by blocking the sale of counterfeit products.

Page 38 Thanks for your attention Viale Liegi 48/b Rome Italy Tel