WIPOD – Arbitration and Mediation Matters: Transcript of Episode 9

ADR and the EU IP Digital Environment

Oscar Suárez

Welcome again to this WIPO Arbitration and Mediation Matters podcast. My name is Oscar.

So, let's say that we're all used to being part of the digital environment. We stream music, movies, we use social media, we upload content. All of this is very normal to us nowadays.

You are most probably listening to this podcast in one of the apps on your phone. However, all this brings legal conundrums that are more and more evident, and we see sprouting a bit everywhere legislation that relates to this. And of course, in the area that concerns us - Alternative Dispute Resolution (ADR) - we've been seeing more and more how ADR is being considered a very useful tool to help solve these disputes between different sorts of parties in this digital environment.

With this in mind, today we'll be talking to Eleonora Rosati. She is a law professor at the University of Stockholm, an of counsel at a big global law firm, she has a very prolific academic output, and she works very closely with the EU Commission and the World Intellectual Property Organization (WIPO).

In what relates to the WIPO Arbitration and Mediation Center, Eleonora has been helping us think and develop procedures that aim to help in this digital environment. So, join us today in this conversation about these very interesting topics.

Oscar Suárez

It's a pleasure to have you with us, as we were saying in the previous introduction. And if you will, maybe we can start with some questions.

Eleonora Rosati

Absolutely. But first, Oscar, please let me thank you for inviting me. It's a pleasure and an honor to be part of your series. So, thank you so much.

Oscar Suárez

Thank you again for being with us. And just to start, the main question that is maybe in everybody's minds given your prolific experience in IP is: what drove you to become an IP lawyer?

Eleonora Rosati

I'm not sure it is on everyone's mind, but I'm happy to accept that. So, my journey in IP was accidental, if you wish, because when I was a student at the University of Florence in Italy there were no real intellectual property courses or classes. And one day I was reading the newspaper and there was an article by a commercial law professor discussing the challenges of copyright in the online age. So, that was a revelation to me.

I was immediately attracted to this area of the law that I didn't have any idea about and it struck me as being indeed a field that would allow me to combine, of course, the interest for the law, but also the love for the subject matter covered by copyright - and the challenges that technological advancement would pose to legal interpretations and principles. So, it appeared to be the perfect fit. It was a love at “first read”.

After that, I decided to start studying copyright on my own. I was also about to graduate and since in the Italian Civil Code there are a few provisions on copyright - very minimalistic ones - I went to a professor of private law asking him to write my thesis with him on copyright. And he told me: “fair enough, but I don't know anything about that, so you are on your own”. So, that was the start of my journey.

And after that I sought an opportunity to work in the IP department of a law firm in Milan and then continuing studying copyright through a masters that I did at Cambridge in the United Kingdom. So that was the start, purely accidental, but I think that my story is quite common.

The students that I come across and want to specialize in IP were indeed struck by the combination of different aspects that intellectual property brings with it. I'm sure it was like that for you too.

Oscar Suárez

Yes, agreed. And just to rephrase that - at least that is the question that I've always had in mind: why people end up being so in love with the subject, which I happened to discover actually by coincidence a bit later in my legal life, but that I really find very interesting and passionate.

I understand completely that link between the legal profession and those interesting aspects that surround us in life and that usually copyright is very close with - when you have maybe an artistic side or whatnot.

And this brings me to another follow-up question: why go into deep in these aspects of the digital environment? Why have you seen this being such an important field to explore?

Eleonora Rosati

Of course, it has been prompted by the fact that digitization has taken over everything.

Also, if we look at the data, and the modalities through which content is disseminated, the physical has been decreasing over the years while digital has been taking over.

So, it is a change in business models, a change in infringement modalities, and it is unavoidable that a lot of the discussion would move there. But my perspective is that of a copyright person. It is quite interesting to see that in copyright - I would say - there are, roughly speaking, two kinds of people.

Those who started with tech and then had to move to copyright because copyright has become so important for tech law generally. And those who started as copyright lawyers, and they've had to become some sort of tech lawyers.

All of these developments. I, myself, think I belong to the latter group. I started with copyright and then moved to digital. I can also say to the listeners who are professionals, but perhaps also students, that there are so many interesting offline copyright questions that are not being displaced or replaced by the rise of artificial intelligence and other technologies.

That is what makes copyright, which is the area of IP I'm active in, so interesting for anyone who approaches it. But to follow up on the point that you were making, IP, no matter what you practice, whether it is patents, trademarks, or copyright, or other areas of IP, cannot leave you indifferent because it is such an important part of our societies that I feel, whether in one sense or another, you cannot not have quite a strong reaction to how things currently are.

Oscar Suárez

I completely understand.

We've been going very deep into the digital environment and I'm going to use a sentence that you just said before we started this podcast that will make it interesting for us to understand.

You said, you're not a very litigious person. So, delving a bit into ADR - in the Alternative Dispute Resolution subjects that usually we discuss in this podcast - and we see this coming out very profusely in legislations- why do you think and what have you been seeing about ADR and IP in the current developments - we know at the EU level, but also somewhere in other places around the world?

What do you think about this and - talking about not being too litigious - how does this resonate with you?

Eleonora Rosati

But you know, it is indeed an important emerging trend, and we are seeing Alternative Dispute Resolution methods not only being encouraged at different levels, but in some cases even mandated.

And, you know, before going into the details, it does make sense because - if you wish - litigation is a failure, because if you get to the point of bringing your matter to court, it means that everything coming before that has not worked out. So, it should be an extrema ratio, something that you do as a last resort, but the functioning system is one in which litigation can be avoided or should be matched to alternative tools that might be better suited for other types of relationships.

For example, situations in which there is a long running business relationship between the parties ending up in court means that the relationship is likely to be deteriorated up to the point that no further collaboration is possible.

While I think that with ADR systems like mediation, it is possible to indeed continue working on a new or fresh understanding of the roles between the parties. And then of course, there is also the cost of litigation, which is no minor matter. It is true that a lot has been done in several legal systems over the past several years by establishing IP specialist courts, smaller track courts, which have made justice more broadly accessible, also to smaller players.

But indeed, ADR or mediation are something that are important and that the stakeholders should be aware of because it might be very useful to avoid the cost of litigation, avoid the uncertainty of litigation and also the cost in terms of time spent with this uncertainty and the possibility to go forward in a renewed kind of relationship.

As I was mentioning, now these instruments are being increasingly mandated by legislation. So, it is an interesting development that suggests also a different emphasis on the role that these instruments can play for the benefit of the overall system.

Oscar Suárez

And particularly we focus, and for us it's been very interesting reading what is happening, for example, in the current and the new Digital Services Act (DSA), for example, where there is an article that kind of hints in a very open way that engaging in an ADR for specific issues relating to claims that the users are having with the online platforms is even needed to be engaged in good faith - not saying that it's obligatory, but in a way it's asking the parties to consider using ADR, which is a bit more explicit than maybe in some other occasions in the legislation.

Why do you think and maybe complementing what you were saying, why would you think is this so much encouraged - much more than before?

Do you think it's because they are acknowledging that this is actually bringing all the benefits that you were mentioning or even protecting in a way more the small right holders that may not have those deep pockets to protect their assets in the way that other companies do? What are your thoughts about this?

Eleonora Rosati

I feel that everything that you said is indeed a part of this objective and also this narrative. It is interesting also that the DSA is a horizontal legislation, so it doesn't apply to any particular right, and it is not an IP-specific instrument.

So, the fact that there is a provision of this kind is a recognition of the role of these tools in the broader legal system, so beyond intellectual property. But if we move this discourse to the IP dimension, we are seeing that indeed the complaint and redress mechanisms are envisaged in different pieces of legislation.

Not to go too far from Europe, Article 17 of the 2019 DSM Directive has such a system in place. Still in that piece of legislation, there is an obligation for the EU member states to provide for ADR systems in disputes relating to contracts of authors and performers.

So, what is the common thread that all these have? It is the fact that these imbalanced relationships in which on the one hand, you have a platform, you might have a publisher, a record label, and on the other hand, you have smaller right holders, the user that uploaded the content to a platform or indeed the authors and performers who might be in a weaker position also when negotiating their contracts.

So, I guess that it is the realization that ADR is not only useful for all the reasons that we were discussing earlier on, but also to allow the small fish, if you pass me the expression, to have a better recourse to justice and to have their voices heard in a more effective fashion.

Oscar Suárez

Okay, I think we agree on the same points. And we see that it's interesting that, of course, we have the DSA, we also saw in 2020-2021 the Copyright Claims Board that came in the US Copyright Office, for example, who has been trying to deal with the small claims too.

And we see this coming up in our case, for example, we have been seeing quite a big surge of cases relating to mediation, particularly from users of platforms already trying to solve these cases via mediation on the online environment.

So, it's not only, if I can complement what you were saying, it's not only the provisions on the legislation, we've been seeing how the users are actually using these tools more and more. And we can see it just in our case a little, how it's been going up. And for us at least, and I think for the right holders in general, it's quite interesting to see that they are finding these mechanisms actually not only in the paper, but actually working in their day-to-day life as a mechanism.

Eleonora Rosati

Absolutely. I think that these trends also suggest two additional aspects.

The first one is that there is clearly more and more awareness of the importance of intellectual property because the role that education does play cannot be underestimated. Also, when you speak, for example, to creatives who do not have any legal background, today they are much better informed about their position on a legal level than what would have been the case five or 10 years ago. IP education does play a key role.

The work that you do at the organization has certainly contributed to a very substantial extent. And in turn, when you have more awareness, you are more keen to indeed bring these matters also to the fore.

The second point is connected to what we were discussing earlier on, that is the rise of digital and the importance of the internet. And indeed, also the realization that this is a means not only to communicate, not only to do business, but also where some very important basic freedoms can be exercised.

So, I think that it also fits the awareness that the medium chosen is one where there are rules to be complied with and when one is not content about state of things, they can have their voice heard through these different alternative instruments, which are more and more important.

Also, the experience that you mentioned from the US, and the data that has been unveiled so far does indicate that these tools are increasingly important, and they are for the benefit of indeed emerging players in the market.

Oscar Suárez

Fantastic. I'm going to change the subject a little bit, just to ask you more of a personal experience question.

Could you share with us a significant experience from your professional life and career in this area that you think has impacted your trajectory as a professional?

Eleonora Rosati

I would like indeed to emphasize the importance of education because it is not exactly the core business of ADR and mediation, but I think that it cannot be considered away from these tools, because if there is no awareness of IP, if there is no awareness of the importance of defending and enforcing your IP rights, then you come to the realization that also what you want to do becomes more and more difficult.

So, from a personal standpoint, also when there is this achievement on the side of people who are not trained as lawyers, I think that that is a remarkable thing. And also advising people on how to defend their rights, also the importance of free legal clinics in which people without necessarily the economic means get advice on how to go about protecting their creations, their work, etc., are all part of this narrative.

So, I think that the work on mediation and ADR does emphasize that litigation is not the only way to resolve disputes. But before thinking that there is a dispute, before coming to the disputed elements, it is important to have awareness of the relevant rights and issues that are at stake. So, I think that it is a global ecosystem in which indeed there are several factors to be weighed in.

Oscar Suárez

And by that answer, I understand also your great passion for education. And we were just discussing about some knowledge sharing that you're doing with people that are actually not lawyers in some different events.

So that explains it and I completely agree with that point. I think awareness is the first, and most essential thing for all the other things to be happening. And it threads very nicely with all of what we've been discussing.

More awareness has incremented people actually trying to protect their rights in the different ways, including trying to find a solution to the dispute. And in that sense, and just to thread into this closing part of this very nice interview that I have had the pleasure of having with you, is what advice would you offer young or aspiring IP practitioners looking to specialize in this evolving area of the digital environment, IP, dispute resolution, etc.? What would you be giving them advice about?

Eleonora Rosati

I mean, if they are lawyers, of course, the importance of painting a true and realistic picture to the people that they are assisting. Also pushing the idea that litigation is the way to go is a great disservice, I think. And the importance of drafting contracts carefully, the importance of speaking to the right people, the importance also of realizing that if you are not able to advise on a specific point of design rights, for example, you need to tell your client that indeed further support might be needed.

So, I think that it is about understanding that the system we are living in is becoming increasingly complex and increasingly specialized. So, the objective is to be in a situation in which everything plays out nicely and there is no need to think about the disputes and how to solve them - so, to prevent this disease from emerging. And then from the side of those who make the IP, so designers, inventors, creators of various sources, etc., it is important to be careful on the business side of things, but I would say that today you cannot have a serious discussion with any counterpart without having consulted a lawyer first.

One should not think that lawyers are necessarily only expensive. There are several ways to get advice on how to set up your relationship in a way that is satisfactory to you. And this indeed feeds into the broader discourse that we were having about the importance of education, awareness, and preventing the disease rather than having to treat it later on.

Oscar Suárez

I couldn't agree more. It's way better to prevent for sure.

Well, Eleonora, it's been a pleasure to talk to you, to get your insights on what is happening in this environment.

You pop up every time in my email via the IPKat or whatever publication you're coming up with, which is very interesting, and we keep abreast of the new things thanks to that. So, it's a real pleasure to talk to you today. I hope you find this interesting for you too.

Eleonora Rosati

Absolutely, Oscar. Thank you so much for having me. And I hope that indeed this podcast will be of interest also to your listeners. So, thanks so much once again for involving me.

Oscar Suárez

Absolutely. Well, thank you. Thank you again. And thank you everybody for listening and we'll hear each other in the next time. Thank you so much.