WIPO Expert Determination Rules for User Uploaded Content
(WIPO EDUUC Rules)

Abbreviated Expressions

Article 1

In these Rules:

“Answer to the Request” means the form available here required to reply to a Request for Expert Determination under these Rules;

“Center” means the WIPO Arbitration and Mediation Center;

“Content” means copyright-protected works or other subject matter;

“Content in Dispute” means Content uploaded by a User to an OCSSP which is subject to automated or non-automated removal or blocking, and for which the User claims Non-infringing Use;

“Determination” means the decision issued by the Expert in accordance with Article 15 of these Rules on the matter referred to Expert Determination;

“Expert” means the sole expert appointed by the Center under Article 9 of these Rules;

“Expert Determination” means the procedure conducted under these Rules;

“Expert Determination Agreement” means an agreement by the Parties to submit to Expert Determination all or certain matters which have arisen or which may arise between them, following removal or blocking by the OCSSP of the Content and subsequent human review performed by the OCSSP. An Expert Determination Agreement may be in the form of an Expert Determination clause in a contract or in the form of a separate contract;

“Model Request” means the electronic form available here;

“Non-infringing Use” means that the User is able to rely on one of the following exceptions or limitations when uploading and making available the Content in Dispute:

(a) quotation; or
(b) criticism; or
(c) review; or
(d) use for the purpose of caricature, parody, or pastiche.

“OCSSP” means the online content-sharing service provider that has stored and has given public access to the Content in Dispute;

“Parties” means the User and the Rightholder and each is a “Party”;

“Request” means the initiation of an Expert Determination under these Rules;

“Rightholder” means a person or entity that owns or controls copyright-protected works or other subject matter in the Content;

“Rules” means the WIPO Expert Determination Rules for User Uploaded Content Disputes provided by the Center. These govern the conduct of an Expert Determination in the event of a dispute between the User and the Rightholder over the Content uploaded by the User to the OCSSP following the removal or blocking of this content;

“User” means the person or entity, with or without a user account with the OCSSP, that uploaded the Content in Dispute to the OCSSP; and

“WIPO” means the World Intellectual Property Organization.

Words used in the singular include the plural and vice versa, as the context may require.

Scope of Application of Rules

Article 2

The Rules apply, as agreed by the Parties in the Expert Determination Agreement, to disputes concerning whether the Content in Dispute uploaded by the User constitutes a Non-infringing Use following removal or blocking of the Content and subsequent human review performed by the OCSSP.

Communication and Periods of Time

Article 3

(a) Unless the Parties have agreed otherwise, or the Center or the Expert has determined otherwise, any notice or other communication that may be or is required to be given under these Rules shall be:

(i) in writing and shall be delivered via email;

(ii) copied to the other Party, the Expert, and the Center.

(b) For the purpose of calculating a period of time under these Rules, such period shall begin to run on the day following the day when a notice or other communication is received. If the last day of such period is a non-business day at the domicile of the User, the period is extended until the first business day which follows.

(c) A notice or other communication shall be deemed to have been received on the day it is delivered in accordance with paragraph (a) of this Article.

(d) For the purpose of determining compliance with a time limit, a notice or other communication shall be deemed to have been sent, made or transmitted if it is dispatched, in accordance with paragraph (a) of this Article, prior to or on the day of the expiration of the time limit.

(e) The Center or the Expert may, at the request of a Party, extend by two (2) business days the date for the filling of the Answer to the Request or the date for the Determination.

Language

Article 4

(a) The language of the Expert Determination shall be one of the official languages in the domicile of the User or English, subject to the power of the Expert to determine otherwise, having regard to any observations of the Parties and the circumstances of the Expert Determination.

(b) The Expert may order that any documents submitted in languages other than the language of the Expert Determination be accompanied by a translation in whole or in part into the language of the Expert Determination.

Request

Article 5

(a) The Party that wishes to commence an Expert Determination shall submit a Request to the Center via arbiter.mail@wipo.int using the Model Request. It shall, at the same time, send a copy of the Request to the other Party and the OCSSP.

(b) The Request shall contain or be accompanied by:

(i) the name, email address, city and country of domicile or other communication references of the Parties and of any representative of the Party filing the Request;

(ii) a description of the matter referred to Expert Determination, including;

(a) a specification of the Content in Dispute;

(b) which Non-infringing Use ground is most applicable to the dispute.

(iii) the designation of the jurisdiction where the removal or blocking of the Content in Dispute is being challenged based on the country of domicile of the User;

(iv) any documents or other information which the Party filing the Request deems relevant to the Determination; and

(v) information on any legal or other dispute resolution proceedings commenced or terminated in connection with the matter referred to Expert Determination.

(c) The Request shall not exceed 2,000 characters.

Unilateral Request

Article 6

In the absence of an Expert Determination Agreement, a Party that wishes to propose submitting a dispute to Expert Determination shall submit a Request in writing to the Center. It shall, at the same time, send a copy of the Request to the other Party and the OCSSP. The Request shall include the particulars set out in Article 5. The Center may assist the Parties in considering the Request.

Date of Commencement of Expert Determination

Article 7

The date of commencement of the Expert Determination shall be the date on which the Center informs the Parties and the OCSSP, in writing by electronic means, of the receipt by the Center of a Request that fulfills the requirements of Article 5 of the Rules.

Answer to the Request

Article 8

(a) When a Request for Expert Determination is not jointly filed by the Parties, the Party that has not filed the Request may submit, within five (5) business days of the date of commencement of the Expert Determination, an Answer to the Request.

(b) When the Request is jointly filed by the Parties, the other Party may submit, within three (3) business days of the date of commencement of the Expert Determination, an Answer to the Request.

(c) The Answer to the Request shall:

(i) specify whether the Party responding to the Request wishes to be contacted directly or through a representative and set out the email address, city and country of domicile which should be used;

(ii) reply to the particulars of the Request; and

(iii) be accompanied by any documents or other information which the Party responding to the Request deems relevant to the Determination.

(d) The Answer to the Request shall not exceed 2,000 characters.

Appointment of Expert

Article 9

(a) The Center shall usually proceed to appoint the Expert within three (3) business days following the end of the period for the submission of the Answer to the Request.

(b) The Center’s appointment of the Expert shall have regard, without limitation, to:

(i) the country of domicile of the User as designated in the Request;

(ii) the matter on which the Determination is sought;

(iii) the Expert’s relevant expertise;

(iv) the ability of the Expert to complete the Expert Determination in due expedition;

(v) the language of the Expert Determination.

(c) The Expert shall, by accepting appointment, be deemed to have undertaken to make available sufficient time to enable the Expert Determination to be completed with due expedition.

Impartiality and Independence

Article 10

(a) The Expert, in its personal capacity, shall be impartial and independent.

(b) The prospective Expert shall, before accepting appointment, confirm to the Parties and the Center that there are no circumstances that might give rise to justifiable doubt as to the Expert’s impartiality or independence.

(c) Unless required by a court of law or authorized in writing by the Parties, the Expert shall not act in any capacity whatsoever, otherwise than as an Expert, in any pending or future proceedings, whether judicial, arbitral or otherwise, relating to the matter referred to Expert Determination.

Replacement of Expert

Article 11

(a) Whenever necessary, a substitute Expert shall be appointed. The procedure provided for in Article 9 of the Rules that was applicable to the appointment of the Expert shall apply mutatis mutandis.

(b) Pending the replacement, the Expert Determination shall be suspended, unless otherwise agreed by the Parties.

Conduct of the Expert Determination

Article 12

(a) Subject to these Rules, the Expert shall conduct the Expert Determination as it considers appropriate.

(b) The Expert shall ensure that the Parties are treated with equality and that each Party is given an adequate opportunity to present information which it considers relevant to the Determination.

(c) Unless otherwise determined by the Expert, in consultation with the Parties or provided by these Rules, no Party or anyone acting on its behalf shall have any ex parte communication with the Expert.

(d) The Expert shall ensure that the Expert Determination takes place with due expedition. Each Party shall cooperate in good faith with the Expert for this purpose.

(e) The Expert shall report to the Center if the Expert determines that any Party is operating in bad faith and shall provide any related documents, or other evidence, as to this determination.

Default

Article 13

(a) The failure of a Party to submit an Answer to the Request shall not prevent the Center and the Expert from proceeding with the Expert Determination.

(b) If a Party, without showing good cause, fails to comply with any provision of, or requirement under, these Rules or any direction given by the Expert, the Expert may draw the inferences therefrom that it considers appropriate.

Confidentiality

Article 14

(a) Each person involved in the Expert Determination, including, in particular, the Parties and their representatives and advisors, the Expert, the OCSSP and the Center, shall maintain the confidentiality of the Expert Determination and may not use or disclose to any outside party the Determination or any information concerning, or obtained exclusively in the course of the Expert Determination, including its existence, except to the extent that:

(i) the Parties have agreed otherwise; or

(ii) the information is already in the public domain; or

(iii) disclosure is necessary in connection with legal proceedings relating to the Expert Determination; or

(iv) disclosure is otherwise required by law.

(b) The Center may, however, include information concerning the Expert Determination in any aggregate statistical data that it publishes concerning its activities, provided that such information does not reveal the identity of the Parties or enable the particular circumstances of the dispute to be identified.

The Determination

Article 15

(a) The Expert makes the Determination on the basis of the information presented by the Parties and may also have regard to, without limitation:

(i) the Expert’s expertise;

(ii) any other information which the Expert considers to be relevant;

(iii) the law applicable to the Non-infringing Use as designated in the Request on the basis of the User's country of domicile.

(b) The Determination shall:

(i) be in writing;

(ii) include a brief description of the matter referred to Expert Determination;

(iii) decide if the use of the Content in Dispute constitutes Non-infringing Use;

(iv) be forwarded by the Expert to the Center within four (4) business days of the Expert’s appointment, in the absence of exceptional circumstances;

(v) indicate the date on which it was made; and

(vi) be signed by the Expert.

(c) The Determination shall be communicated by the Center to the Parties, the Expert and the OCSSP.

(d) The Determination shall be binding and effective as from the date it is communicated pursuant to paragraph (c) and (e) of this Article. The Expert shall be deemed to have completed its functions as of the effective date of the Determination.

(e) The Determination shall not deprive any Party or the OCSSP of the right to seek relief in an action before a national court or other competent authority. The Determination may only be used in such a setting pursuant to Article 14(a) (iii) of these Rules.

(f) Pursuant to the Rules, the Determination shall be implemented by the OCSSP.

Settlement and Other Grounds for Termination

Article 16

(a) If, before the Determination is made, the Parties agree on a settlement of the matter referred to Expert Determination, the Expert shall terminate the Expert Determination.

(b) If, before the Determination is made, the continuation of the Expert Determination becomes unnecessary or impossible for any reason not mentioned in paragraph (a) of this Article, the Expert shall terminate the Expert Determination.

(c) A Party must promptly communicate to the Expert and the Center if it initiates and serves legal proceedings in a court of competent jurisdiction concerning the subject matter of the Request in the period before a Determination is given. On communication being given under this provision, the Expert or the Center shall terminate the Expert Determination proceedings.

Waiver

Article 17

A Party which knows that any provision of, or requirement under, these Rules, or any direction given by the Expert, has not been complied with, and yet proceeds with the Expert Determination without promptly recording an objection to such non-compliance, shall be deemed to have waived its right to object.

Fees and Costs

Article 18

(a) The Request and the Answer to the Request shall be subject to the payment to the Center of the full amount of the administration fee and the fee of the Expert by the Requesting and the Responding Parties, in accordance with the Schedule of Fees of the Rules applicable on the date on which the Request is received by the Center.

(b) The administration fee and the fee of the Expert shall not be refundable.

(c) The Center and the Expert are not required to take any action on a Request or an Answer to the Request until they have received the fees in full from the Parties.

(d) If the Party who has filed a Request or an Answer to the Request fails to pay within 7 calendar days to pay the administration fee and the fee of the Expert, it shall be deemed to have withdrawn its Request or its Answer to the Request.

(e) If both Parties have paid the applicable fees in full, the Center will refund to the winning party the fees paid by that Party.

Exclusion of Liability

Article 19

Except in respect of deliberate wrongdoing, the Expert, the OCSSP, WIPO and the Center shall not be liable to a Party for any act or omission in connection with the Expert Determination.

Waiver of Defamation

Article 20

The Parties and, by accepting appointment, the Expert agree that any statements or comments, whether written or oral, made or used by them or their representatives in preparation for or in the course of the Expert Determination shall not be relied upon to found or maintain any action for defamation, libel, slander or any related complaint, and this Article may be pleaded as a bar to any such action.

Suspension of Running of Limitation Period under Statute of Limitations

Article 21

The Parties agree that, to the extent permitted by applicable law, the running of any limitation period under any statute of limitations or any equivalent law shall be suspended in relation to the matter that is the subject of the Expert Determination from the date of commencement of the Expert Determination until the date of the completion or termination of the Expert Determination.

WIPO Schedule of Fees and Costs

WIPO Expert Determination Rules for User Uploaded Content Disputes

(All amounts are in Euros)

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