Were eBay and Amazon - the two e-commerce platforms who signed - bulldozed into this?

The European Commission has quietly brokered an industry agreement on 'notice and takedown' which will apply to major e-commerce hosting sites. The current signatories are a long list of rights-holders - eg Adidas, LVMH, MPA, Lego Group, Nike, Proctor and Gamble, Richemont, Microsoft, Unilever - plus the two major e-commerce platforms, eBay and Amazon.

The agreement, signed on 4 May, comes as a surprise to those outside the Commission, as the talks appear to have been held in secret. It is a 'Memorandum of Understanding' (MoU) which means that it is not legally binding, but may be used by rights-holders to pressure Internet companies.

The MoU is intended 'to enhance collaboration' between rights-holders and Internet e-commerce hosting companies. Specifically, it

sets out a 'notice and take-down' arrangement encompassing an automated reporting system, and an undertaking on the part of the Internet companies to deal with such notices in 'an efficient and comprehensive manner'... 'without undue delay'.

It includes 'co-operation' on sharing of information between the industries, which may include 'disclosure of identity and contact details of alleged infringers'.

However, what is strange is that the agreeement - whilst officially made available on the Commission website -does not carry the Commission logo or letterhead.

It's important that the agreement is not legally binding, which means that rights-holders may still take court action against eBay - and no doubt, they will hold out that threat if eBay does not comply.

It is unclear as yet what it will mean for eBay users, but an automated notice and take-down system leaves little room for traders to appeal. I would suggest that it will make it more difficult for people who genuinely sell second-hand goods or old stock.

And it is likely that the rights-holders will try to use it to take control of eBay and online channels as they seek to crush rival sellers, whose customers do not wish to pay for the so-called 'brand value' in their goods.

It smacks of the 'co-operative efforts' on trade marks which have been sneaked into ACTA, and which I have been questioning for some time. Such 'co-operative efforts ' are outside the EU legal framework, which made an explicit choice not to spell out notice and takedown procedures.

The fact that eBay and Amazon appear to be the lone Internet companies on the long list of signatories would suggest that the Commission succeeded with some bullying tactics.

Amendment 9 May 2011: A reader has pointed out to me that the Commission is using 'voluntary' agreements as a tactic to avoid scrutiny of either the European Parliament or the Council of Ministers. It is explained in this article on the EDRi website - although the article refers to a different series of talks, the tactic would appear to be very similar.

The correct attribution for this article is: Monica Horten (2011) EU Commission brokers counterfeit takedown agreement http://www.iptegrity.com 5 May 2011.

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed.

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