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Does Anyone Own a Country’s Domain Name?

Michael Geist - Tue, 08/12/2014 - 07:21

Appeared in the Toronto Star on August 9, 2014 as Can Anyone Own a National Domain Name?

Earlier this year, a group of U.S. litigants launched an unusual domain name lawsuit. The group consisted of family members of victims of terror attacks they claim were sponsored by the governments of Iran, Syria, and North Korea. The group had succeeded in winning over a billion dollars in damages in several lawsuits filed in U.S. courts.

Unable to collect, they sued the Internet Corporation for Assigned Names and Numbers (ICANN), the body that administers the Internet’s domain name system. Their goal: seize the dot-ir, dot-sy, and dot-kp domain name extensions (the respective country-code domains) by ordering ICANN to transfer them as compensation.

The notion of seizing a country’s domain name extension may sound implausible, but the case is proceeding through the U.S. court system with ICANN filing a brief late last month. ICANN is unsurprisingly seeking to dismiss the case, arguing that the domain name extensions are not property that is capable of seizure (I am a board member of the Canadian Internet Registration Authority, Canada’s dot-ca administrator, but this article represents my own views and not those of CIRA).

While there is much to be said for dismissing the case – seizing a country’s domain name extension should not be decided by private litigation in U.S. courts – the problem is that many of ICANN’s arguments are undermined by government actions over the past decade. ICANN relies on three key claims: domain names are not property, governments do not “own” their country-code domain, and the U.S. does not have jurisdiction over a foreign country-code domain.  Each claim suffers from some shortcomings.

First, the legal status of a country-code domain name extension is unclear. It is not property in the physical sense and within the ICANN world it amounts to little more than an entry in a database that links the extension to the entity responsible for administering it.

However, the U.S. has enacted legislation that effectively characterizes domain names as property for intellectual property purposes. For example, the U.S. Department of Homeland Security regularly seizes domain names as part of crackdowns against online copyright infringement. Further, in 1999, the U.S. passed the Anti-Cybersquatting Consumer Protection Act, which allows trademark owners to treat domain names as property for the purposes of lawsuits against out-of-country domain name registrants.

Moreover, other countries have treated their country-code domain name extensions as the equivalent of property when they lease it to foreign companies to operate the extension. Prominent examples include dot-nu, the country-code for the Pacific island of Niue, which granted the rights to operate the name to a private company that marketed it as a generic domain.

Second, ICANN argues that “country-code top-level domains are not owned by the countries to which they are assigned.” However, its own Governmental Advisory Committee says that “governments or public authorities maintain ultimate policy authority over their respective ccTLDs and should ensure that they are operated in conformity with domestic public policy objectives, laws and regulations, and international law and applicable international conventions.”

Moreover, countries frequently refer to their domestic country-code domains as national resources and many retain the legal right to determine who administers it. In Canada, before CIRA became the administrator of the dot-ca in 2000, the Canadian government wrote to ICANN to confirm its approval of the transfer.

Third, the issue of U.S. jurisdiction over the entire domain name system remains a contentious political and policy issue. The U.S. government currently maintains ultimate contractual authority over the transfer of a country-code top-level domain (though that may change in the future) and at least one case involving dot-cg (Congo’s ccTLD) found that the country-code could be viewed as located in the U.S.

While countries are adopting a wait-and-see approach with respect to this lawsuit, the case could have a significant impact on global Internet governance while also answering the question of who – if anyone – owns a country’s top-level domain.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post Does Anyone Own a Country’s Domain Name? appeared first on Michael Geist.

The Ghost of iCraveTV?: The CRTC Asks Bell For Answers About Its Mobile TV Service in Net Neutrality Case

Michael Geist - Thu, 08/07/2014 - 07:17

Before there was Youtube, Hulu, Netflix, and broadcasters streaming their content on the Internet, there was iCraveTV.  iCraveTV, a Canadian-based start-up, launched in November 1999, by streaming 17 over-the-air television channels on the Internet.  The picture was small, connection speeds were slow, but the service was streaming real-time television years before it became commonplace. The company relied upon two Canadian laws to provide the service: the Copyright Act, which contains a provision permitting retransmission of broadcast signals subject to certain conditions, and the CRTC’s New Media Exemption order, which excluded new media broadcasters from regulation.

The company faced an immediate legal fight from Hollywood and broadcasters. Within months of launching, the service shut down. U.S. demands for Canadian law reform ultimately led to changes to the Copyright Act, which effectively excluded “new media retransmitters” from taking advantage of the retransmission provision.

iCraveTV is long forgotten for most Internet users, but the legal framework that ultimately emerged was invoked this week by the CRTC in Canada’s leading net neutrality case.

At issue is whether companies such as Bell are violating Canada’s Internet traffic management practices (also referred to as net neutrality guidelines) due the different treatment of Internet video on services such as Bell Mobility. The original complaint noted that the cost of watching a service such as Netflix is different from watching Bell Mobile TV because of different ways of treating the data that is used (the Bell Mobile TV data is exempted from the monthly data cap). The case has now been expanded to include other providers.

Bell has argued that the case is not a telecom case (and therefore subject to the traffic management rules), but rather a broadcast matter that qualifies under the new media exemption. This week, the CRTC sent a series of questions to Bell (as well as Rogers and Videotron). The very first question invokes the iCraveTV legal framework:

Given that you have indicated in your submissions that the Mobile TV App operates under the terms of the Digital Media Broadcasting Undertaking Exemption Order, it would appear that you would be unable to make use of the retransmission regime set out in the Copyright Act. In light of this, please describe in detail the following:
    a.    Which rights you obtain to broadcast live television channels on Mobile TV App; and
    b.    Whether subscribers to Mobile TV App receive any local, regional or distant channels, and if so how you determine what constitutes local, regional or distant for that subscriber.

In plain language, the post-iCraveTV framework means that services can’t both rely on the Copyright Act retransmitter provision and the CRTC’s new media exemption order.  If the retransmitter relies on the Copyright Act, it will be subject to regulation under the Broadcasting Act. Alternatively, if the service is excluded from Broadcasting Act regulation by qualifying under the new media exemption, it cannot rely on the Copyright Act provision and must obtain licenses to avoid copyright infringement claims.

The CRTC notes that Bell says it is relying on the new media exemption for its Mobile TV service. Leaving aside the bigger question on whether the service should be viewed as telecom or broadcast, Bell’s response suggests that it must have licensing arrangements for the channels it carries, otherwise the retransmission infringes copyright. The Bell Mobile TV service includes several over-the-air channels such as the CBC and CITY-TV and the CRTC wants to know more about the licensing deals that presumably exist to allow Bell to retransmit those channels through its service.

The post The Ghost of iCraveTV?: The CRTC Asks Bell For Answers About Its Mobile TV Service in Net Neutrality Case appeared first on Michael Geist.

Did Canada Cave on the Pharmaceutical Patent ISDS Issue in CETA?: Still No Text, But Official Comments Suggests It Did

Michael Geist - Wed, 08/06/2014 - 06:42

For the second time in less than a year, Canada and the EU have announced that they reached agreement on the Canada – EU Trade Agreement.  Back in October 2013, there was an announcement of an agreement “in principle”.  The announcement did not include a release of the text and the parties said there was still further work to be done on drafting and legal analysis. Yesterday, brought another announcement of an agreement on the text. Once again, the announcement did not include a release of the text and the parties said there was still further work to be done on legal review and translation into 23 languages.

Given the agreement is 1,500 pages, the additional work is expected to take a considerable amount of time. While government ministers claimed that CETA “is ready for debate and ratification”, the reality is that there cannot be a meaningful, informed debate without the actual text. Releasing it for full study and comment is the essential next step.

Analysis without the text is difficult, however, the combination of prior leaks and media reports indicate that Canada caved on its concerns regarding the potential replication of Eli Lilly-style pharmaceutical patent lawsuits. I wrote about the issue earlier this week, with the $500 million lawsuit by Eli Lilly prompting the Canadian government to propose an ISDS carve out for court decisions and administrative tribunal rulings involving pharmaceutical patents. The Canadian proposal stated:

For greater certainty, this Article does not apply to a decision by a court, administrative tribunal, or other governmental intellectual property authority, limiting or creating an intellectual property right, except where the decision amounts to a denial of justice or an abuse of right.

The EU countered with a proposal to merely include the following in a separate annex or joint understanding:

For greater certainty, the revocation, limitation or creation of intellectual property rights to the extent that these measures are consistent with TRIPS and the IPR Chapter of CETA, do not constitute expropriation. Moreover, a determination that these actions are inconsistent with the TRIPS Agreement does not establish that there has been an expropriation.

The EU offer was obviously far less than what Canada proposed: it was a side understanding rather substantive provisions within the agreement and it did not carve out anything (rather it sought to “clarify” the scope of the provision).

So how did they resolve the issue?  IPolitics reports that Canadian officials said the following yesterday:

We did agree to a declaration that relates to investor-state dispute settlement when it comes to pharmaceutical products, and we have made it clear in that joint declaration with the EU that investor-state disputes are not to be used as an appeal mechanism for decisions made in domestic courts. We have undertaken to review three years after the entry into force, at the request of either party, how investor-state dispute settlement is working with respect to the pharmaceutical area. And we would be prepared to make changes if necessary. We’ve also talked about parties possibly issuing binding interpretations if we find that arbitration panels may be drifting away from what our intention has been.

In other words, Canada caved. The EU proposal for a joint understanding was adopted with some clarifying language and no carve out. The only real addition was a three year review, which ironically is a favourite giveaway for the Conservatives to the opposition (reviews were added to C-13 and C-36 over the past two months) when it seeks to show a willingness to compromise but not actually change anything of substance.

The post Did Canada Cave on the Pharmaceutical Patent ISDS Issue in CETA?: Still No Text, But Official Comments Suggests It Did appeared first on Michael Geist.

How a 20 Year Old Patent Application Could Up-End Canada’s Biggest Trade Deal

Michael Geist - Tue, 08/05/2014 - 06:26

In the early 1990s, pharmaceutical giant Eli Lilly applied for patent protection in Canada for two chemical compounds, olanzapine and atomoxetine. The company had already obtained patents over the compounds, but asserted that it had evidence to support new uses for the compounds that merited further protection. The Canadian patent office granted the patents based on the content in the applications, but they remained subject to challenge.

Both patents ultimately were challenged on the grounds that there was insufficient evidence at the time of the applications to support the company’s claims. The Federal Court of Canada agreed, invalidating both patents. Eli Lilly proceeded to appeal the decision to the Federal Court of Appeal and later to the Supreme Court of Canada. The company lost the appeals, as the courts upheld the decision to invalidate the patents.

My weekly technology law column (Toronto Star version, homepage version) notes that under most circumstances, that would conclude the legal story as nine Canadian judges reviewed Eli Lilly’s patent applications and ruled that they failed to meet the standards for patentability. Yet in June 2013, the company served notice that it planned to file a complaint under the North American Free Trade Agreement claiming that in light of the decisions, Canada is not compliant with its patent law obligations under the treaty. As compensation, Eli Lilly is now seeking $500 million in damages.

The Eli Lilly claim is winding its way through the legal process – the Canadian government filed its defence several weeks ago – but the implications are being felt far beyond the specifics of the case.

If the pharmaceutical giant succeeds, it will have effectively found a mechanism to override the Supreme Court of Canada and hold Canadian taxpayers liable for hundreds of millions in damages in the process. The cost to the health care system could be enormous as the two Eli Lilly patents may be the proverbial tip of the iceberg and claims from other pharmaceutical companies could soon follow.

Indeed, it appears that the Canadian government has awoken to the danger associated with dispute resolution systems that risk trumping domestic regulations and place billions of dollars at risk.

Last week, reports out of Germany indicated that the German government might not support the Canada – European Union Trade Agreement (CETA) if it includes such a system (referred to as an investor-state dispute settlement or ISDS). ISDS has attracted considerable attention there, due to concerns over a multi-billion dollar claim involving Germany’s decision to phase-out nuclear power.

While the ISDS concerns have centered on Germany, the reality is that the Canadian government has been holding up finalizing the agreement due to related fears stemming from fears of more Eli Lilly-style cases. The pharmaceutical industry is a powerful lobby group in Europe and some may be willing to pursue similar litigation over Canadian patent law.

According to leaked versions of CETA texts, Canada is requesting that court decisions and administrative tribunal rulings involving the creation or limitation of intellectual property rights be carved out of the treaty’s ISDS provisions.

The European Union has thus far rejected the Canadian proposal.  However, given the mounting opposition to ISDS in Europe, it may be willing to shift its position.  From a Canadian perspective, the Eli Lilly case has provided a powerful reminder that the risks associated with ISDS may outweigh the benefits with legal cases that can take decades to resolve.

The post How a 20 Year Old Patent Application Could Up-End Canada’s Biggest Trade Deal appeared first on Michael Geist.

How a 20 Year Old Patent Application Could Up-End Canada’s Biggest Trade Deal

Michael Geist - Tue, 08/05/2014 - 06:25

Appeared in the Toronto Star on August 1, 2014 as How a 20 Year Old Patent Application Could Up-End Canada’s Biggest Trade Deal

In the early 1990s, pharmaceutical giant Eli Lilly applied for patent protection in Canada for two chemical compounds, olanzapine and atomoxetine. The company had already obtained patents over the compounds, but asserted that it had evidence to support new uses for the compounds that merited further protection.  The Canadian patent office granted the patents based on the content in the applications, but they remained subject to challenge.

Both patents ultimately were challenged on the grounds that there was insufficient evidence at the time of the applications to support the company’s claims. The Federal Court of Canada agreed, invalidating both patents. Eli Lilly proceeded to appeal the decision to the Federal Court of Appeal and later to the Supreme Court of Canada. The company lost the appeals, as the courts upheld the decision to invalidate the patents.

Under most circumstances, that would conclude the legal story as nine Canadian judges reviewed Eli Lilly’s patent applications and ruled that they failed to meet the standards for patentability. Yet in June 2013, the company served notice that it planned to file a complaint under the North American Free Trade Agreement claiming that in light of the decisions, Canada is not compliant with its patent law obligations under the treaty. As compensation, Eli Lilly is now seeking $500 million in damages.

The Eli Lilly claim is winding its way through the legal process – the Canadian government filed its defence several weeks ago – but the implications are being felt far beyond the specifics of the case.

If the pharmaceutical giant succeeds, it will have effectively found a mechanism to override the Supreme Court of Canada and hold Canadian taxpayers liable for hundreds of millions in damages in the process. The cost to the health care system could be enormous as the two Eli Lilly patents may be the proverbial tip of the iceberg and claims from other pharmaceutical companies could soon follow.

Indeed, it appears that the Canadian government has awoken to the danger associated with dispute resolution systems that risk trumping domestic regulations and place billions of dollars at risk.

Last week, reports out of Germany indicated that the German government might not support the Canada – European Union Trade Agreement (CETA) if it includes such a system (referred to as an investor-state dispute settlement or ISDS). ISDS has attracted considerable attention there, due to concerns over a multi-billion dollar claim involving Germany’s decision to phase-out nuclear power.

While the ISDS concerns have centered on Germany, the reality is that the Canadian government has been holding up finalizing the agreement due to related fears stemming from fears of more Eli Lilly-style cases. The pharmaceutical industry is a powerful lobby group in Europe and some may be willing to pursue similar litigation over Canadian patent law.

According to leaked versions of CETA texts, Canada is requesting that court decisions and administrative tribunal rulings involving the creation or limitation of intellectual property rights be carved out of the treaty’s ISDS provisions.

The European Union has thus far rejected the Canadian proposal.  However, given the mounting opposition to ISDS in Europe, it may be willing to shift its position.  From a Canadian perspective, the Eli Lilly case has provided a powerful reminder that the risks associated with ISDS may outweigh the benefits with legal cases that can take decades to resolve.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post How a 20 Year Old Patent Application Could Up-End Canada’s Biggest Trade Deal appeared first on Michael Geist.

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