WRITTEN QUESTION E-1993/00

by Jürgen Zimmerling (PPE-DE) to the Commission

(21 June 2000)

Subject: e-commerce

What measures are planned to regulate the following problem areas involving the Internet?

What is the Commission's legal position regarding:

1. The treatment of Internet domain names from the point of view of trade mark and labelling law;

2. The violation of trade mark law by the establishment of hyperlinks;

3. Repeated cautions concerning violations of the law (in particular copyright violations) on the Internet;

4. The obligation to pay defence costs (for instance lawyers' fees) made necessary by unjustified cautions;

5. The criteria to distinguish between private and commercial web sites;

6. The question whether the NATD (notice and take down) liability derogation developed by US courts will have a place in plans to regulate this field?

Supplementary information regarding point 6:

- Under the NADT procedure, liability derogation is accorded to a person infringing the law who removes from the web the contents or links which he has put on the Internet and which are illegal immediately after notification, i.e. at the latest following the notification of the (copyright) law violation.

Answer given by Mr Bolkestein on behalf of the Commission

(8 September 2000)

1. The Commission is fully aware of the difficulties experienced within the Community in ensuring the respect of trade mark law legislation as regards the speculative and abusive registration of names as domain names. As announced in the communication from the Commission on the organisation and management of the internet(1), the Commission will initiate public consultation on the necessary principles required to fight against speculative and abusive registration of names as domain names.

The Commission supports the uniform dispute resolution policy (UDRP) that has been put in place by the Internet corporation for assigned names and numbers (ICANN) and World intellectual property organization (WIPO) for the generic top level domains and endorses the outcome of the international workshop on cybersquatting held in Australia on 31 January 2000 and 1 February 2000, where it was agreed that WIPO would be requested to initiate a study and develop recommendations on further issues arising from abusive domain names registration in relation to the protection of personal and non-protected names within the domain name system and to develop voluntary guidelines for the development of practices and policies to curb abusive and bad faith registration of protected names.

2. As regards the violation of trade mark law by the establishment of hyperlinks, the Commission is actively participating in the work of the WIPO standing committee on the law of trademarks, industrial designs and geographical indications on the protection of industrial property rights in relation to the use of signs on the internet. In this framework, the Commission and the WIPO Member States are studying a set of guidelines for the application of existing national or regional laws to legal problems resulting from the use of a sign on the Internet, thus comprising the use of signs as hyperlinks.

3. The practice of repeated cautions is known in some Member States notably in case of violations of the law against unfair competition. As regards the fight against copyright piracy on the Internet, the parties concerned seem to have less recourse to repeated cautions but usually submit specific notices to Internet intermediaries to take copyright infringing material from the networks or to apply for injunctions from the court against intermediaries whose services are used by a third party to infringe a copyright or related right. With respect to the development of specific notice-and-take down procedures, there is a general agreement that these should be further developed by the marketplace itself (for further details see reply to question 6). The possibility to ask for injunctions against Internet intermediaries has been reiterated in Article 8(3) of the draft common position of the Council on the amended proposal for a directive on copyright and related rights in the information society(2).

4. The Commission is not aware of any problems at Community level caused by national obligations to pay defence costs in the case of unjustified cautions.

5. In its communication on the organisation and management of the Internet, the Commission has not addressed the issue concerning the distinction between private and commercial web sites. This distinction was suggested by the WIPO report of April 1999 on the Internet names and addresses as a means to address data protection concerns in the sense that the domain name holders of private web sites would not need to provide as much data for registration as commercial site holders. However, WIPO acknowledged the necessity to reflect further on this proposal. The Commission will continue to follow this issue, taking into account particularly the requirements of Directive 95/46/EC of the Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and the free movement of such data(3) and Directive 97/66/EC of the Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector(4).

6. According to the approach of Directive 2000/31/EC of the Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)(5),

notice and take down-procedures should be developed on a voluntary basis and via co-operation between the parties involved. The Directive on electronic commerce establishes liability standards for Internet intermediaries on which the development of notice and take down-procedures can be based.

The Parliament supported this approach when it adopted the Directive on electronic commerce on 4 May 2000 without any amendments. In its legislative resolution the Parliament urged the Commission to encourage the establishment of efficient notice and take down procedures.

The Commission will actively encourage and support such developments and participate in the dialogue with all interested parties. Such procedures are likely to evolve quickly reflecting the technological progress and market developments. Industry and users are the best parties to determine the requirements for the effective functioning of such procedures and to agree upon the setting up of them.

(1) COM(2000) 202 final.

(2) Not yet formally adopted; on the Commission's proposal and Amended proposal for a Directive of the Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the Information Society cf. COM(97) 628 final (OJ C 108, 7.4.1998) and COM(1999) 250 final (OJ C 180, 25.6.1999).

(3) OJ L 281, 23.11.1995.

(4) OJ L 24, 30.1.1998.

(5) OJ L 178, 17.7.2000.