Category: Ecuador

USTR Releases Annual Out of Cycle Review of Notorious Markets

It is that time of year again when the Office of the U.S. Trade Representative (USTR) releases its annual report on Notorious Markets—The 2014 Out-of-Cycle Review of Notorious Markets. As we reported on last year, this annual review identifies foreign physical and online markets reported by U.S. businesses and industry organizations as being engaged in substantial IP piracy and counterfeiting.

This year’s review identified several foreign social media and file transferring websites, as well as a number of Internet service providers (ISPs), as being notorious markets including those hosted or located in Argentina, the British Virgin Islands, Canada, China, Czech Republic, France, Netherlands, Panama, Philippines, Poland, Russia, San Marino, Spain, Switzerland, Ukraine, the United Kingdom and Vietnam. Additionally, physical markets in Argentina, Brazil, China, Ecuador, India, Indonesia, Mexico, Nigeria, Paraguay, Thailand and Uruguay were also identified as being notorious markets.

The USTR also highlighted a number of recent developments including efforts by certain previously listed Chinese sites to curb piracy activities on their websites, as well as increased enforcement actions by rights holders and government officials to shut down physical and online markets in Brazil, the European Union and Ukraine among others.

What’s The Takeaway? As we have said before, every foreign market has its own IP protection challenges. U.S. businesses that operate abroad or are expanding into new markets should review the USTR’s 2014 Out of Cycle Review of Notorious Markets to help evaluate the IP protection risks associated with particular markets they wish to enter. Doing so can help to ensure that such businesses can better protect their IP assets abroad.

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Enforcing Online Copyright Protection Abroad: Part III – South America

As part of my ambitious plan to provide you with information on online copyright enforcement procedures through all of the countries in the world, I come to you with part III of my ongoing posting series on national notice and takedown provisions—South America. Although few South American countries have adopted full-fledged notice and takedown provisions as provided in the U.S., Australia, and others, many South American countries have or an in the process of adopting national notice and takedown provisions, either through legislative reforms or judicial action, or have adopted other measures owners or rights holders of copyright protected works (collectively, “Rights Holders”) can use to protect their works online.

However, as I have mentioned in previous posts on this topic, determining whether a Rights Holder can enforce rights in their work online and abroad depends on: (1) whether a work qualifies for foreign protection (aka national treatment) under the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) or the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS); (2) whether the Internet service provider (ISP) hosting the infringing use of the work is subject to jurisdiction in the country where online enforcement is sought; and (3) what online copyright enforcement procedures are available in the country of enforcement.

Each of these issues have been previously examined here and those with further questions should consult with a qualified attorney.

Below are the current online copyright enforcement procedures in each South American country. However, a couple of preliminary notes:

Classifications: A South American country that maintain legal protocols for a Rights Holder to directly petition an ISP to remove infringing content in order for the ISP to qualify for safe harbor protection from contributory liability for copyright infringement is identified below as a “Notice and Takedown System.” A country that does not provide legal provisions for a Rights Holder to directly enforce their copyright protections through an ISP notification system, and are instead forced to seek copyright enforcement through legal action are referred to as a “Judicial System.”

Notice Limitations: Unfortunately, even if a country maintains a Notice and Takedown System, an ISP may still refuse to disable access to a website or website content upon receipt of a Rights Holder’s infringement notice. In such instances, a Rights Holder may be forced to seek enforcement through that foreign country’s legal system in order to remove such online content.

Time Sensitivity: As several of the listed countries in this posting are evaluating or in the process of implementing copyright reforms, either through legislation or judicial action, there is the possibility that the following information may soon change.

Argentina

Enforcement System: Judicial System (Possible pending judicially-created Notice and Takedown System)

Berne Convention Member: Yes

Overview and Notes: Argentina does not currently provide statutory notice and takedown provisions. However, it was reported in June 2014 that the Argentine Supreme Court (Corte Suprema de Justicia de la Nación) heard oral arguments in Rodríguez v. Google Inc., where a lower appellate court had established a ISP safe harbor test where a Rights Holder couldnotify [a] search engine, identifying the alleged infringing contentand thesearch engine acts expeditiously to block the content via a quick and effective filtering method.” The Argentine Supreme Court has yet to publish a final opinion in Rodríguez, and Argentina’s civil law system makes it unclear whether any such judicial decision will require that all Argentine-based ISPs be subject to notice and takedown provisions upheld in such a decision.

Governing Legislation: Copyright Law (Law No. 11.723)

Notice Requirements: N/A

Bolivia

Enforcement System: Judicial System

Berne Convention Member: Yes

Overview and Notes: Bolivia does not currently maintain any notice and takedown provisions.

Governing Legislation: Law No.1322 on Copyright

Notice Requirements: N/A

Brazil

Enforcement System: Judicial System (*Possible Notice and Takedown System)

Berne Convention Member: Yes

Overview and Notes: Brazil has evaluated notice and takedown reforms, enacted ISP liability legislation, and has even ruled that ISPs are subject to a notice system. However, it is still unclear whether nationwide notice and takedown provisions have been fully established in Brazil.  In 2012, the Brazilian government evaluated the Copyright Law Reform Bill (Bill nº 3133/2012), which commentators had reported was to include U.S.-style notice and takedown provisions. However, the Reform Bill has yet to be implemented. In August 2012, the Brazilian Superior Court of Justice held in a special judiciary opinion in Google Brazil (Special Appeal No. 1323754/RJ) that an ISP was required to temporarily remove infringing content 24 hours upon notice of infringement from a Rights Holder in order to retain immunity from from contributory liability for copyright infringement. However, commentators have questioned Google Brazil’s applicability to other Brazilian-based ISPs, requirements for Rights Holder infringement notices, and the duration of an ISP’s removal obligations, based on Brazil’s civil law system.

In May 2014, the Brazilian government enacted the Internet Bill of Rights (Law No. 12.965) that establishes liability for “Internet intermediaries” for failing to timely comply with a judicial takedown order. However, the Internet Bill of Rights provides no direct Rights Holder infringement notice provisions.

Governing Legislation: Law on Copyright and Neighboring Rights (Law No. 9.610), Internet Bill of Rights (Law No. 12.965)

Notice Requirements: N/A

Chile

Enforcement System: Expedited Judicial System

Berne Convention Member: Yes

Overview and Notes: Chile does not currently possess notice and takedown provisions despite agreeing in the U.S.-Chile Free Trade Agreement (FTA) to provide “legal incentives for [ISPs] to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials.” Chile rejected adopting notice and takedown provisions in its ratification of the U.S.-Chile FTA, as well as in proposed copyright reform legislation in 2010. Instead, Chile implemented an expedited judicial enforcement process where a Rights Holder may submit a judicial petition against a Chilean-based ISP in a Chilean Civil Court to expeditiously evaluate the alleged infringement and obtain an injunctive takedown order.

However, Chile may soon be required to implement notice and takedown provisions if the Trans Pacific Partnership (TPP) is finalized and the U.S. draft chapter is adopted in a final TPP agreement.

Governing Legislation: Article 85R, Law No. 17.336 on Intellectual Property

Judicial Petition Requirements:

-The allegedly infringed rights, with a specific indication of the rights and the infringement procedure;
-The infringing material; and
-The location of the infringing material in the ISP’s respective networks or systems.

Colombia

Enforcement System: Judicial System

Berne Convention Member: Yes

Notes and Overview: Despite multiple reform efforts, Colombia does not currently maintain any notice and takedown provisions. Colombia had agreed to adopt notice and takedown provisions in a side letter to the U.S.-Colombia FTA in 2006. However, Colombia has yet to implement such provisions. In 2011, Colombian legislators introduced copyright reforms in Bill No. 201 (aka Ley Lleras 1.0) that included notice and takedown provisions, but it was not enacted. The Colombian Congress subsequently passed similar reform legislation in 2012, Law No. 1520/2012 (aka Ley Lleras 2.0), but such legislation was largely invalidated by the Colombian Constitutional Court in January 2013 on the grounds that such legislation was not properly implemented. Additional proposed copyright reform legislation, Bill No. 306, was circulated for comments in March 2014, but does not include notice and takedown provisions and has yet to be implemented.

Governing Legislation: Law No. 23 on Copyright

Notice Requirements: N/A

Ecuador

Enforcement System: Minimal Judicial System

Berne Convention Member: Yes

Overview and Notes: Ecuador does not currently maintain any notice and takedown provisions. Further, it was reported in December 2013 that the Ecuadorian National Assembly amended its Penal Code and the Intellectual Property Law to decriminalize all IP rights violations, thereby only allowing administrative actions and fines to enforce copyright in works in Ecuador, online or otherwise.

Governing Legislation: Intellectual Property Law (Consolidation No. 2006-13)

Notice Requirements: N/A

French Guiana

Enforcement System: Notice and Takedown System (*Restricted and Undetermined)

Berne Convention Member: Yes

Overview and Notes: French Guiana is an overseas department of France and is thereby governed by French copyright law. As a European Union (EU) member state, France was required to adopt notice and takedown provisions as provided under Article 14 of the EU Electronic Commerce Directive (Directive 2000/31/EC). However, the EU Directive provides only general recommendations, thereby giving EU member states such as France substantial flexibility to implement their own notice and takedown provisions.

France adopted notice and takedown provisions in its Creation and Internet Law where Rights Holder organizations could submit complaints to France’s online copyright authority, The High Authority for the Dissemination of Works and the Protection of Rights on the Internet (HADOPI), who would then provide notices to online infringers and remove allegedly infringing content under a graduated three-stikes approach. However, it was reported that individual Rights Holders were not allowed submit complaints to HADOPI, as such complaints must be submitted by agents of industry organizations, rights collection agencies, and the French Center of Cinematography.

Further, the French Ministry of Culture revoked the three-strikes approach on July 9, 2013 (Decree No. 2013-596) due to a perceived lack of effectiveness and public concerns that its enforcement measures were overly punitive.  However, the Decree did not expressly remove the Creation and Internet Law’s ISP penalties or its notice system. However, as mentioned, the HADOPI notice system, if still in effect, can only be utilized by industry organizations, rights collection agencies, and the French Center of Cinematography on behalf of individual Rights Holders.

Governing Legislation: Intellectual Property Code

Authorized Agent Notice Requirements:

-Sworn declaration that the authorized agent of the referral has standing to act in the name of the Rights Holder over the protected work or materials in question;
-Information on the website address(es) and other details of the alleged infringer; and
-Information on the infringing acts including date and time of the acts.

Guyana

Enforcement System: Judicial System

Berne Convention Member: Yes

Overview and Notes: According to the World Intellectual Property Organization, copyright law in Guyana is governed by its former colonizer, the United Kingdom. However, it does not appear that Guyana has adopted notice and take provisions as required by EU member states such as the United Kingdom under Article 14 of the EU Electronic Commerce Directive (Directive 2000/31/EC).

Governing Legislation: United Kingdom Copyright Act of 1956

Notice Requirements: N/A

Paraguay

Enforcement System: Judicial System

Berne Convention Member: Yes

Overview and Notes: Paraguay does not currently maintain any notice and takedown provisions.

Governing Legislation: Law No.1328/98 on Copyright and Related Rights

Notice Requirements: N/A

Peru

Enforcement System: Judicial System

Berne Convention Member: Yes

Overview and Notes: Despite multiple reform efforts, Peru does not currently maintain any notice and takedown provisions. Peru had agreed to adopt notice and takedown provisions in a side letter to the U.S.-Peru FTA in 2006, and it did adopt several copyright reforms in 2009 in order to implement its U.S.-Peru FTA obligations. However, such reforms do not appear to include notice and takedown provisions as promised in the U.S.-Peru FTA side letter.

However, Peru may soon be required to implement notice and takedown provisions if the TTP is finalized and the U.S. draft chapter is adopted in a final TPP agreement.

Governing Legislation: Copyright Law (Legislative Decree No. 822), and Law Amending, Incorporating and Regulating Miscellaneous Provisions on the Implementation of the Trade Promotion Agreement Signed Between Peru and United States

Notice Requirements: N/A

Suriname

Enforcement System: Judicial System

Berne Convention Member: Yes

Overview and Notes: Suriname does not currently maintain any notice and takedown provisions.

Governing Legislation: Copyright Law of 1913

Notice Requirements: N/A

Uruguay

Enforcement System: Judicial System

Berne Convention Member: Yes

Overview and Notes: Uruguay does not currently maintain any notice and takedown provisions. It is reported that Uruguay is currently considering a number of copyright reforms, yet it does not appear that notice and takedown provisions are included in such reform proposals.

Governing Legislation: Law No. 17.616 Amending Law on CopyrightLaw No. 9.739 on Copyright

Notice Requirements: N/A

Venezuela

Enforcement System: Judicial System

Berne Convention Member: Yes

Overview and Notes: Venezuela does not currently maintain any notice and takedown provisions.

Governing Legislation: Law on Copyright

Notice Requirements: N/A

Special thanks to Sara Parker, recent Seattle University School of Law graduate and new member of the Washington State Bar for her assistance.

USTR Requesting Public Comments to Assist in Identifying Foreign IP Protection Barriers for U.S. Exports

The Office of the U.S. Trade Representative (USTR) announced yesterday that it is requesting public comments to assist the USTR in identifying significant barriers to U.S. exports of goods and services, including foreign IP protection deficiencies. The comments are being collected for inclusion in the USTR’s annual National Trade Estimate Report on Foreign Trade Barriers (NTE Report) that identifies barriers to U.S. exports including the “lack of intellectual property protection (e.g., inadequate patent, copyright, and trademark regimes).”

Last year’s NTE Report identified several U.S. export markets as possessing IP protection trade barriers, or at least IP protection concerns, including Angola, Argentina, Australia, Bahrain, Brazil, Cambodia, Canada, Chile, China, Colombia, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, European Union (member states), Ghana, Guatemala, Hong Kong, India, Indonesia, Iraq, Israel, Japan, Kazakhstan, Kenya, Kuwait, Laos, Malaysia, Mexico, Morocco, New Zealand, Nicaragua, Nigeria, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Russia, Saudi Arabia, South Africa, South Korea, Sri Lanka, Switzerland, Taiwan, Thailand, Turkey, Ukraine, United Arab Emirates, Uzbekistan and Venezuela.

Public comments for inclusion in this year’s NTE Report are due to the USTR by no later that October 29, 2014. Further instructions on the NTE public comment submission process are available here.

New USTR and IIPA Reports Describe the Current State of IP Protections for U.S. Businesses Abroad

Over the last week, the Office of the U.S. Trade Representative (USTR) and the International Intellectual Property Alliance (IIPA) released reports on the current state of intellectual property (IP) protections for U.S. businesses abroad. These reports provide updated insights on foreign countries and foreign retail markets (both physical and online) that have recently caused U.S. businesses the most IP protection difficulties.

Here is a summary of the reports:

IIPA 2014 Special 301 Report Submission

On February 8th, the IIPA submitted their 2014 Special 301 Report Submission to the USTR. As one of the largest U.S. lobbying groups for the copyright-based industries, the IIPA’s submission identifies the foreign countries the IIPA believes provides the most ineffective IP legal protections for U.S. businesses. The USTR’s final Special 301 Report (released annually April-May) provides reporting to the U.S. government and the general public on the countries that, according to the Omnibus Trade and Competitiveness Act (19 U.S.C. § 2242(a)), deny “adequate and effective protection of [IP] rights” or “fair and equitable market access to United States persons that rely upon [IP] protection.”

Although the U.S. government rarely imposes trade sanctions based on the Special 301 Report, a country’s listing in the final report often impacts the U.S.’ trade relations with that country and the degree to which the U.S. government initiates trade promotional activities with the same. From both a private sector and practical standpoint, the Report also represents a review of the markets that U.S. businesses have had the most IP protection challenges.

What countries did the IIPA recommend for inclusion in the 2014 Special 301 Report?

Priority Foreign Countries. For a second year in a row, the IIPA has identified Ukraine as being a “Priority Foreign Country.” This is the least favorable designation available under the Special 301 reporting system. Specifically, it identifies that country as one with the “most onerous or egregious acts, policies, or practices” that “have the greatest adverse impact (actual or potential) on the relevant [U.S.] products” without making efforts to ameliorate their status. 19 U.S.C. § 2242(b)(1)). Ukraine’s designation as a Priority Foreign Country was based on a number of factors, most notably the absence of effective online copyright enforcement, and unfair and non-transparent royalty society collections. Shockingly, the classification was also based on reports of widespread software pirating by Ukrainian government agencies.

Priority Watch List and Watch List Countries. The IIPA’s Special 301 Report Submission lists Argentina, Chile, China, Costa Rica, India, Indonesia, Russia, Thailand and Vietnam on the “Priority Watch List,” and Belarus, Brazil, Bulgaria, Canada, Ecuador, Greece, Israel, Kazakhstan, Kuwait, Mexico, Romania, Saudi Arabia, Switzerland, Taiwan, Tajikistan, Turkey, Turkmenistan, United Arab Emirates and Uzbekistan as “Watch List” countries. Although not as a severe rating as a Priority Foreign Country, being listed as a country on the Priority Watch List or simply Watch List means that a country has potential IP protection deficiencies that require varying levels of USTR monitoring.

Newly Non-Listed Countries. It is also important to note that the IIPA has recommended removing a number of countries from the final 2014 Special 301 Report due to their improvements in IP protection. These countries include Barbados, Bolivia, Colombia, Dominican Republic, Egypt, Finland, Guatemala, Jamaica, Lebanon, Pakistan, Paraguay, Peru, Trinidad and Tobago, and Venezuela.

Out-of-Cycle Review of Notorious Markets

Also, on Wednesday, the USTR released an Out-of-Cycle Review of Notorious Markets that identified physical and online markets reported by U.S. businesses and industry organizations as being engaged in substantial IP piracy and counterfeiting. The Review includes particular social media and file transferring sites hosted abroad, including sites hosted in Antigua and Barbuda, Bulgaria, Canada, China, Czech Republic, Finland (possibly), Netherlands, Poland, Russian Federation, Spain, Sweden, Ukraine, United Kingdom and Vietnam. Specific physical markets in Argentina, China, Colombia, Ecuador, India, Indonesia, Mexico, Paraguay, Spain, Thailand and Ukraine were also deemed notorious.

What’s The Takeaway? Every foreign market has its own IP protection challenges. U.S. businesses that are exploring expansion into new markets should consider the IIPA’s Special 301 Report Submission (as well as the USTR’s Final Special 301 Report due out later this year), and the USTR’s Out-of-Cycle Review of Notorious Markets to help evaluate the IP risks associated with such markets. Doing so can help to ensure that such businesses can better protect their IP assets as they expand.

USTR Releases Review of Notorious IP Infringement Markets

The Office of the U.S. Trade Representative (USTR) released an Out-of-Cycle Review of Notorious Markets on Thursday, December 13, 2012, which identified physical and online markets reported by U.S. businesses and industry organizations as being engaged in substantial intellectual property piracy and counterfeiting. The Review included particular social media, multi-platform, deeplinking, cyberlocker, business-to-business, business-to-consumer, bit torrent indexing, bit torrent tracking, and pay-per-download websites. Specific physical markets in Argentina, China, Colombia, Ecuador, India, Indonesia, Mexico, Pakistan, Paraguay, Thailand, and Ukraine were also deemed notorious.

Other notable changes in the Review included the removal of Chinese websites Taobao and Sogou as notorious markets, for their efforts to work with rights-holders to identify infringing content on their websites.

A copy of the Review is available here.