Not just China needs pre-upload filtering

21 October 2015, Baroness Neville-Rolfe gave a speech in London about the UK-PRC relationship in regard to IP, see here.

After summing up the achievements in this field by both states, she points to the room for improvements: “Of course, there is more to be done. We must ensure that the lessons learnt from these successes are incorporated into “business-as-usual” on Alibaba websites, including by: streamlining notice-and-takedown procedures; further enhancing pre-emptive filters to prevent criminal scale infringements from happening in the first place; and smoother linking of on- and off-line enforcement.”

I cannot agree more about the need for pre-emptive filters. In my book Trademarks and Social Media and in my article on safe harbours (Sinking the safe harbour with the legal certainty of strict liability) I advocate for basically the same, namely which I call pre-upload filters. Online service providers, which are also “walled gardens”, such as Alibaba or eBay are better positioned to filter the content uploaded by internet users than IP rights holders.

Unfortunately, if one reads the IP chapter in the leaked TPP (5 October 2015), it seems that the tide is against a statutory obligation for online service providers to monitor the content of their servers:

“6. Eligibility for the limitations in paragraph 1 may not be conditioned on the Internet Service Provider monitoring its service or affirmatively seeking facts indicating infringing activity.”


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