Secondary Liability for Trademark Infringement on the Internet: The Situation in Germany and Throughout the EU

It is a safe assumption that every one of the twenty-eight EU Member States has some form of secondary liability principles within its general tort law. Traditionally, tort law principles require an element of deliberate contribution to, and therefore positive knowledge of, another person’s action. They are therefore of limited value for situations like Internet infringement, because the contributor is typically unaware of persons committing concrete acts of infringement. When the contributor merely provides the technical infrastructure that is used by an anonymous crowd for legitimate as well as illegitimate purposes, the “deliberate contribution” or “positive knowledge” element is difficult to prove. The general principles of tort law are not harmonized within Europe. However, regarding Internet services that may be misused for unlawful acts (including, but not limited to, intellectual property infringement), the E-Commerce Directive has created a legal framework for exemptions from liability (the safe harbor). In that regard, the E-Commerce Directive is the European equivalent of the U.S. Digital Millennium Copyright Act (DMCA), with the notable distinction that the E- Commerce Directive applies horizontally, thus encompassing trademark infringement

Taking ATRIP Down Memory Lane

The International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP) was founded in Geneva in July 1981, with the support and assistance of the World Intellectual Property Organization. This professional academic association now includes hundreds of intellectual property professors and researchers from around the world. As the final contribution to the ATRIP Passes 30 Symposium, which collects the reminiscences of the past and current ATRIP presidents, this short essay provides, in chronological order, some key information about all the pre-ATRIP Round Tables and ATRIP Congresses. This short history not only documents the historical origins, rapid growth and past accomplishments of an important transnational professional association, but also reflects the rapid development of the intellectual property field in the past three decades

The International Protection of Trademarks After the TRIPS Agreement

The present essay focuses on problematizing the European Union’s claim that interculturaldialogue constitutes an advocated method of talking through cultural boundaries—inside as wellas outside the classroom—based on mutual empathy and non-domination. More precisely, theaim is to analyze who is being constructed as counterparts of the intercultural dialogue throughthe discourse produced by the EU in policies on education, culture and intercultural dialogue.Within the Union, Europeans are portrayed as having an a priori historical existence, whilethe ones excluded from this notion are evoked to demonstrate its difference in comparison to theEuropean one.The results show that subjects not considered as Europeans serve as markers of themulticultural present of the space. Thus, intercultural dialogue seems to consolidate differencesbetween European and Other—the‘We’ and ‘Them’ in the dialogue—rather than, as in line withits purpose, bringing subjects together

Floors and Ceilings in International Copyright Treaties: \u3cem\u3eBerne/TRIPS/WCT Minima and Maxima\u3c/em\u3e

This paper addresses “floors” – minimum substantive international protections, and “ceilings” – maximum substantive international protections, set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the “maxima” have generally received less attention. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive. Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by the TRIPS and WCT exclusion of protection for ideas, methods and processes, should promote the free cross-border availability of facts and ideas, as well as of exercise of the Berne Convention mandatory exception for the making of “quotations” from publicly-disclosed works. Individual Berne countries of origin may protect excluded subject matter or preclude mandatory exceptions in their own works of authorship, but not in foreign Berne works. Nonetheless, Member States might be able to elude Conventional maxima by resort to copyright-adjacent sui generis rights, such as the Digital Single Market Directive’s new press publisher’s right. This Comment considers the extent to which Conventional maxima may nonetheless have a preclusive effect on such maneuvers

Minimum and Maximum Protection Under International Copyright Treaties

This Comment addresses minimum and maximum substantive international protections set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the maxima have generally received less attention. It first discusses the general structure of the Berne Convention, TRIPS, and the WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive