Intellectual Property and the Value of an Open Internet
CategoriesACTACopyrightGlobal Internet GovernanceGuest PostIntellectual PropertyInternet GovernanceInternet Society
Today’s guest post is by Konstantinos Komaitis, Geneva-based Policy Advisor to the Internet Society.
In June 2013, the Internet Society released a paper on how it would like to see the discussions of intellectual property evolve. The focus of the paper was on process rather than on substance. The goal was not to reinvent the wheel. On the contrary, the Internet Society, having paid attention to the way discussions have been shaping and the way the arguments have been evolving, took the initiative to put forth a set of best practices that should underline all intellectual property discussions regardless of whether they are taking place at a national, regional or international level.
Upholding transparency, encouraging multistakeholder and inclusive structures, respecting the rule of law, understanding the Internet’s underlying architecture and appreciating the Internet’s open standards are of value because they support better and more informed decision making. This was the basis for our paper. For the purposes of this blog, however, I will focus on the value of ‘openness’.
But, first, let’s put things in context.
Intellectual property is unquestionably one of the most debated issues of Internet governance and, over the years, it has emerged as a key issue in the policy agendas of many governments. The argument, primarily from countries with strong intellectual property economies is that online infringement of intellectual property rights is detrimental to the commercial interests of intellectual property holders and, therefore, to the global economy as a whole.
Many contest this view. They argue that intellectual property is becoming increasingly irrelevant and it is out of balance and out of tune with the realities of a global Internet that is constantly changing. They claim that intellectual property is antithetical to core Internet values and often go as far as to suggest that we should abolish intellectual property all together.
In all likelihood, the answer lies somewhere in the middle. When it comes to the digital environment, the issue is how to reconcile existing intellectual property regimes with the realities of the online environment. Whereas traditional intellectual property rules are based on a web of alienable ownership rights and territorial licensing frameworks and restrictions, the Internet is a global medium, which has often behaved similarly to public commons. The current legal principles surrounding copyright, trademarks and patents reflect a period when the sharing and the exchange of ideas did not have the same dimensions they have today. What hasn’t changed, however, is the desire by creators of content to protect and benefit from their creations.
The question for all of us is how to structure an intellectual property framework for the Internet age – one that respects the needs of creators, is consistent with the global nature of the Internet, and is inclusive of a broader range of stakeholders.
The fact that intellectual property is now part of this global Internet policy arena means that the governance approaches that are in place for other issues in the Internet, should be reflected – to the extent possible – in intellectual property. This is a significant point, one that requires a mindset shift among industry, policymakers, civil society and end users. The development of a sustainable intellectual property framework for the online era is not the domain of any one or even two sets of stakeholders. Robust solutions will only be found if we all look for them together.
Recent policymaking initiatives, like the international Anti-Counterfeiting Trade Agreement (ACTA), the regional Trans-Pacific Partnership Agreement (TTP) and the national Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA), underscore the need for a new approach based on cooperation, inclusiveness and transparency.
First Steps: Intellectual Property as an Internet Governance Matter
Now is the time for the Internet community to craft a strategy to create a harmonious nexus between Internet platforms and intellectual property regimes. As a first step, the Internet Society has produced a paper that sets some minimum standards of process (and some of substance) that could help facilitate and guide such discussions.
Unlike other issues, intellectual property has yet to be fully incorporated into the broader Internet governance dialogue. While we can point to countless policy initiatives to combat the infringement of intellectual property rights in the Internet, it continues to be the case that most of these policies were developed in a non-inclusive and non-transparent manner, failing to benefit from the current multistakeholder trends of Internet governance.
In our discussion paper on intellectual property on the Internet, the Internet Society comes to a straightforward conclusion: Discussions primarily aimed at establishing or changing Internet governance norms, whether they touch on trademark, copyright or patent protections or enforcement, should be part of the larger Internet governance debate.
With this as our understanding, we can then move forward to determine the ultimate structure, design and approach to intellectual property protection in the Internet age.
Our paper sets forward the following propositions:
- Intellectual Property and Multistakeholder Governance: All discussions about intellectual property in the Internet should be conducted under a multistakeholder framework.
- Intellectual Property and Transparency: the need for transparency is reflected both in the WSIS Principles as well as in the Open Standards Paradigm. The Internet Society believes that transparency principles need to be further reflected in agreements like the Anti- Counterfeiting Trade Agreement (ACTA), the Trans-Pacific Partnership Agreement (TPP), the Canada-Europe Comprehensive Agreement (CETA) and the Trans-Atlantic Trade and Investment Partnership (TTIP).
- Intellectual Property and the Rule of Law: Intellectual property should be based on principles such as due process, equality of rights, fairness, transparency, the right to be heard and legal certainty.
- Intellectual Property and Internet Architecture: The Internet Society has long recognized that the infringement of intellectual property rights is a critical issue that needs to be addressed, but, at the same time, it must be addressed in ways that do not undermine the global architecture of the Internet or curtail internationally recognized rights.
- Innovation Without Permission: All intellectual property laws and policies should bear in mind the Modern Paradigm for Standards Development,  shaped by adherence to the following principles: cooperation; adherence to principles including due process, consensus, transparency, balance and openness; collective empowerment; availability; and, voluntary adoption.
These propositions are neither novel nor original; but they are central towards creating an environment for the reconciliation of intellectual property rights and the Internet.
Openness is Good for Creativity and Intellectual Property
The technical founders of the Internet repeatedly remind us that the architecture of the Internet is based on openness – the Internet is open because it uses free, publicly available standards that every single one of us can access and use to create and build new ones. Through this openness, anyone, anywhere in the world, is able to launch innovative applications and services and create new business models that can revolutionize the way the world communicates and users interact. This openness promotes competition and trust, whilst enabling investment and innovation.
In fact, the desire for the Internet to continue evolving through the use of open standards is so crucial that in 2012 five key standards organizations – the Internet Society (ISOC), the Internet Engineering Task Force (IETF), the Institute of Electrical and Electronics Engineers (IEEE), the World Wide Web Consortium (W3C) and the Internet Architecture Board (IAB) – conceptualized principles that, for so many years, have guided the Internet community in the setting of standards. Introducing the Open Stand principles – what is essentially a “Modern Paradigm for Standards”  – these standard-setting bodies invited “technologists, inventors, developers, professionals, scientists, engineers, architects, members of academia, students, civil and governmental leaders, developers and other professionals and organizations to stand with [them] as [they] promote a standards development model that demands:
- Cooperation among standards organizations;
- Adherence to due process, broad consensus, transparency, balance and openness in standards development;
- Commitment to technical merit, interoperability, competition, innovation and benefit to humanity;
- Availability of standards to all; and,
- Voluntary adoption.
In the context of copyright, for instance, openness acts as a catalyst for the proliferation of new business models. The fact that Internet standards are open has allowed businesses like Spotify, iTunes, Pandora and Netflix to introduce a variety of ways of accessing content. This is not a minor thing, especially if we consider that before the Internet existed access to content was limited. Now, with a click of a button, users are able to access content wherever they are. Similarly, the Internet’s open architecture has given traditional business models the opportunity to rethink their practices and we are now experiencing how they are using the Internet to disseminate their vast libraries of content in a more streamlined and user-friendly way. Much of this could not happen if Internet standards were not open.
Global acceptance of the Internet’s design and the openness of its standards is, therefore, essential. A positive step forward would be to make these standards a core principle of intellectual property policy. Policymakers should make a conscious effort in ensuring that technology does not become proxy of bad policy choices and repeat the mistakes of ACTA or SOPA.
For reaching this objective, transparency is paramount. Transparency allows for participation, promotes the idea of a healthy Internet ecosystem and is premised on the way Internet technologies have been evolving since their inception. Intellectual property can only benefit from upholding the Openness of the Internet.
Clearly, policymakers need to acknowledge the basic nature of the Internet and craft policies and legal frameworks that support the open and unrestricted development of Internet technologies. The challenge, therefore, is twofold: how to articulate laws that take into consideration the technology-driven societal changes and how to craft policy that is able to embrace the innovator and creator of the future.
This is no small challenge. But, we are optimistic because we believe that open standards, innovation and intellectual property can complement each other in ways that allow the Internet to act as a facilitator and be seen as a friendly place for content creation.  We are hopeful that the release of this paper brings the community closer to a stage where we can truly engage in a multistakeholder dialogue about intellectual property protections in the Internet age.
The Open Stand Paradigm initiative should not be taken lightly; it should, constitute a point of reference for all policy-making activities, including intellectual property.
The full paper can be accessed here.