Web Dispute Resolution Policy
UPDATE May 2011: Following numerous submissions and comments on the last draft, this revised discussion draft is now open for public discussion and comment. Please send all comments to pargy(at)tdc.org.au. Issues for discussion include the breadth of the policy (should it be confined to trade mark issues or can it extend to broader intellectual property issues, such as copyright infringement and trade secret infringement?), the name of the policy (is 'Web' too broad, should it be 'Intellectual Property' or 'Social Networks'?), and the processes and procedures proposed (is it too complicated, ill-adapted to the different context, or too simplistic?).
In essence, what is proposed is an independent and neutral dispute resolution infrastructure analogous to that which supports the UDRP, but which can be contractually invoked by operators of social networking and other Web 2.0 sites in the event of intellectual property complaints. The offering is intended to relieve site operators of the burden of establishing their own intellectual property dispute resolution infrastructure and its associated staffing and administration costs. It is also intended to free ride on the credibility, acceptance and goodwill that exists toward the UDRP process by the Internet community.
To invoke the scheme, the terms and conditions of membership of a site simply need to provide that, in the event of a complaint being made that a site member is infringing another personís intellectual property rights, the site member agrees to submit to an administrative proceeding under the WDRP, and the site operator will abide by the outcome.
There will be Panellists to whom WIPO and any other accredited service provider will refer the case for decision, with a fee being paid by the complainant as with the UDRP. The outcomes need to be capable of simple and, ideally, automated, implementation by the site operator. At this stage the only two outcomes being contemplated are dismissal of the complaint or cancellation and/or banning of the respondentís site membership. Whilst cancellation of a personís site membership is drastic, bear in mind that the complainant will need to prove the elements of the complaint including trade mark confusion, lack of any legitimate rights on the part of the respondent, and bad faith registration or use of the impugned words. We are proposing to use the auDRP variant of the UDRP both because it accommodates complaints about the use of someoneís name and also because it uses the disjunctive ďorĒ to cover bad faith registration or good faith registration with subsequent bad faith use.
At this stage our thoughts are that the scope of the WDRP will be confined to complaints about intellectual property rights, with very similar criteria to be applied to those set out in paragraph 4(a) of the auDRP. There is a school of thought that seeks to add to that scope complaints in respect of unfair trade and the like. Views are sought in relation to the expansion option both in terms of scope and also succinct criteria, such as Ďa qualitatively substantial reproductioní of complainantís work.
Philip N Argy
Web Dispute Resolution Policy
Discuss using #wdrp on Twitter or, preferably, join the WDRP discussion group on Facebook.