Wednesday, August 24, 2011

Online Brand And Reputation Protection Got Nasty

What is common between online brand and reputation protection, intellectual property rights (IPRs) protection in an online environment and cyber attacks? For a dominant majority of people there is none. However, if you are a keen observer of recent trend of online brand and reputation management and protection, you would immediately realise there is a strong and direct relationship between them.

In an old case, E2-Labs filed a case against zone-h and zone-h was blocked in India. Arguments against and in favour of such blocking were given from time to time but the site is blocked in India till now.

Not very late it was reported in media that an Indian company was paid by the film industry to get copyrighted works removed from the Internet. The company openly admitted launching of Denial of Service (DoS) attacks against torrent sites that refuse to comply with takedown notices.

Recently, Reliance Entertainment, as a pre-emptive measure for movie Singham, obtained a John Doe order from the Delhi High Court, restraining the screening/distribution of the film on various platforms, including Internet. The court order was served upon various internet service providers (ISPs) in India who blocked access to such file sharing/torrent sites. This affected genuine torrent sites and torrent users as well.

Now there is a new trend in this regard. Industry players are now hiring crackers as brand protectors and reputation managers. None can doubt that a good review boosts the image of a brand of a company and a bad review can hurt its goodwill and brand. The companies are trying to suppress the bad and critical reviews by hiring the services of such crackers.

The modus operendi is very simple. The crackers have to make it sure that the critical online review is not available and accessible to the existing and prospective customers. Earlier this year, a cracker, promising his customers “reputation management” services, had embedded code into the website to prevent search engines from recognising certain postings. In some cases, website visitors were misdirected to a false message stating that the posting had been redacted.

The cracker was hired by reputation management companies that accepted thousands of dollars in monthly fees from their clients, promising that critical reviews about their businesses could be removed from search engine results or deleted from the Internet altogether.

Till now the “legality” of these online brand protection and reputation management activities is not free from blemish. It is high time to formulate norms, standards and regulatory framework for these brand protection and management services in India.

Friday, August 19, 2011

Political Declaration Of UN General Assembly On HIV/AIDS

The signing of Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS Agreement) was a landmark development in the field of intellectual property rights (IPRs) for various signatories to the same. The TRIPS Agreement brought the “harmonisation” of IPRs regime world over and became an internationally acceptable standard regarding IPRs protection.

However, it was subsequently felt that “public health” aspect needs a less stringent IPRs regime. The Doha Declaration on the TRIPS Agreement and Public Health was adopted by World Trade Organisation (WTO) to meet the public health objective.

To further, strengthen this public health initiative, a Political Declaration was adopted in the UN General Assembly on 10th June 2011 on HIV/AIDS. This declaration, inter alia, recognised the importance of affordable medicines, including generics in scaling up access to affordable HIV treatment.

It mentions that protection and enforcement measures for intellectual property rights should be compliant with TRIPS Agreement and should be interpreted and implemented in a manner supportive of the right of Member States to protect public health and, in particular, to promote access to medicines for all.

However, the underlying principle of India’s negotiating strategy on issues relating to IPR is that commitments will have to be fully circumscribed by TRIPS and the present domestic legal framework for IPR in India.

Doha Declaration On The TRIPS Agreement And Public Health

The Doha Declaration on the TRIPS Agreement and Public Health was adopted by the World Trade Organisation (WTO) in the Fourth Session of Ministerial Conference on 14th November, 2001. The updated status of the same is available at the WTO site. It says:

1. We recognize the gravity of the public health problems afflicting many developing and least-developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics.

2. We stress the need for the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) to be part of the wider national and international action to address these problems.

3. We recognize that intellectual property protection is important for the development of new medicines. We also recognize the concerns about its effects on prices.

4. We agree that the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all.

In this connection, we reaffirm the right of WTO Members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose.

5. Accordingly and in the light of paragraph 4 above, while maintaining our commitments in the TRIPS Agreement, we recognize that these flexibilities include:

(a) In applying the customary rules of interpretation of public international law, each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles.

(b) Each Member has the right to grant compulsory licences and the freedom to determine the grounds upon which such licences are granted.

(c) Each Member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency.

(d) The effect of the provisions in the TRIPS Agreement that are relevant to the exhaustion of intellectual property rights is to leave each Member free to establish its own regime for such exhaustion without challenge, subject to the MFN and national treatment provisions of Articles 3 and 4.

6. We recognize that WTO Members with insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use of compulsory licensing under the TRIPS Agreement. We instruct the Council for TRIPS to find an expeditious solution to this problem and to report to the General Council before the end of 2002.

7. We reaffirm the commitment of developed-country Members to provide incentives to their enterprises and institutions to promote and encourage technology transfer to least-developed country Members pursuant to Article 66.2. We also agree that the least-developed country Members will not be obliged, with respect to pharmaceutical products, to implement or apply Sections 5 and 7 of Part II of the TRIPS Agreement or to enforce rights provided for under these Sections until 1 January 2016, without prejudice to the right of least-developed country Members to seek other extensions of the transition periods as provided for in Article 66.1 of the TRIPS Agreement. We instruct the Council for TRIPS to take the necessary action to give effect to this pursuant to Article 66.1 of the TRIPS Agreement.