Technological and Net Neutrality - Recalibrating Intellectual Property in the Age of Information

The information era we live in gives us the power to own, control, and access information. The law in this era has continued to play its role in granting rights and regulating behavior concerning valuable resources (in this case being information itself). This article aims at studying the intellectual property law (allocating rights and regulating behavior) of the information and how it is affected by technological and societal changes. NOTE – This article will be divided into two parts – one dealing with technological neutrality and intellectual property and the second dealing with net neutrality and intellectual property.

Part 1 – Technological Neutrality and Intellectual Property Rights

According to technological neutrality, laws should advance independently of any particular technology. It says that rather than laws changing towards technological development the laws should rise above such reactivity to ensure the consistency and sustainability of regulations over time and across technologies. It has many shades of meaning different meanings can produce differing applications with desirable results.

Three Approaches to Technological Neutrality

First – The Restrictive Approach

It takes the narrowest view by focusing on the words of the statute and technical activities at issue. It tries to apply the law as written to the new technological activity. Its purpose is that intellectual property rights apply to all technologies including unforeseen technologies. It completely ignores the difference between new and old technologies. It acts as a tool to protect the rights-holder to control and exploit works on new platforms.

Second – The Intermediate Approach

It broadens its focus by not only focusing on the activity also on the result of the activity, or the function it performs. It tries to apply the law in a functionally equivalent which is applying the law equally to new technologies having the same function or effect as older technologies. It is not only concerned with equal treatment of rights across technologies but also with achieving similar results for functionally equivalent technological processes. Since it is effects-oriented, the perspective adopted for the said approach is external in focus [looking to what the technology accomplishes rather than the technical processes involved in producing the outcome]. It allows the possibility of different treatments for substantively different technologies to ensure an equivalent result.

Third – The Expansive Approach

It focuses not only on specific activity and its function or effect but also one where the activity fits within the broader context of the intellectual property rights system and its purposes. It advocates that what should remain equal is not the treatment of technologies but the application of core intellectual property rights concepts and doctrines that try to balance the rights and interests. It tries to maintain intellectual property rights policy goals amidst technological changes. This approach is purpose-oriented.

Hindrance to such approaches

First – Author’s Rights

When such approaches threaten to support the extension of user rights or to limit owner’s rights concerning exploiting new technology, the courts retreat the position that such limits require the actions of the legislature. This shows that intellectual property rights are concerned with the protection of authors and owners, in case of any limits or exceptions they must be defined clearly, and failing which authors’ rights will be supreme.

Second – Balancing Rights and Public Interest

The purpose of intellectual property rights is to promote public interest to encourage and disseminate artistic and intellectual work and to reward the creator of the work. Balancing both becomes a hindrance. In the name of public interest, it was held just to limit the author’s right to control the reproduction of their works.

Third – Fundamental Rights

Due to changing circumstances, the language of rights has evolved to capture the notion that basic rights cannot be violated by the government. These rights are inalienable and unchangeable. The rights act as a safety valve to the citizens. One such right is the right to speech. This right is protected even if the author’s view has become less popular or has become offensive over time. Due advancement of technology the protection has extended to all kinds of media. Thus, these rights increase the conflict between old intellectual property rights and changing societal circumstances.

Critical Analysis

How information is created and exchanged has changed dramatically. Technological developments have increased the sharing of information to all kinds of social media platforms. Even with this rapid advancement in technology, the law remains to be in stagnant and refuses to develop with the advancement.

As one of the primary laws by which the exchange of information is controlled the intellectual property rights are at the center of evolving information systems. They lack the basic consistency and concentrated approach.

They have a firm adherence to protecting the owner’s rights and follow a restrictive approach. Some people interested in developing technological neutrality have tried to apply the law equally to functionally equivalent acts but are not adequate to the changing circumstances. The most suitable way is to follow the expansive approach it necessitates the understanding of intellectual property rights and other legal rights at issue in connection to the relations that have generated the problem. It requires the decision-maker to introspect, how these rights will shape the pertinent relations, and whether those relations will promote the social values at stake in the intellectual property rights.

Part 2 – Net Neutrality and Intellectual Property Rights

Net Neutrality – Way to Understand

Net neutrality is globally recognized as a network principle of equal treatment of data packets moving across the IP networks. It has been used to describe open and non-discriminatory access to the internet.
Regarding net neutrality, there are two contrasting views –

Firstly – it is held that every user must have equal access through the internet especially through the electronic communication networks to all the content, services, and applications carried over these networks, irrespective of who is supplying or using them, in a transparent and non-discriminatory manner. This view has a lot of constraints, for example, protecting the networks from attacks, from problems of traffic, installation of mechanisms to comply with legal obligations. Which necessitates that the network is managed by traffic management tools.

Secondly – the bandwidth of the net is limited. Different users require different bandwidths based on their usage. For example, a person using YouTube will need more bandwidth than a person using Gmail. This follows the logic that there should be different price ranges for different bandwidths. The proponents of net neutrality hold that neither such person should be given priority, nor he should be charged higher, everyone should be treated equally.

In the practical scenario, all data packets are not created equally. Data packets for different applications have different features and they need a different type of treatment on the network for various reasons. Due to which the concept of net neutrality does not work in the real world. The crux of the debate is to strike a balance between the two views. This can be done by assimilating the core principles of Net Neutrality and shaping actions around them.

International Scenario

Based on the measures taken on Net Neutrality, nations can be divided into the following three categories –

Countries that have taken no specific measures and consider the existing mechanism sufficient to address the issue – Example – North Korea
Countries that have adopted light-touch regulatory measures – Example – Japan and UK
Countries that have taken specific legislative measures for the enforcement of Net Neutrality principles, subject to reasonable traffic management and other exemptions – Example – USA, Brazil, France, Singapore, Chile

Chile was the first nation to enact Net neutrality principles into law in July 2010. It was followed by other countries.

Intellectual Property Rights and Net Neutrality

The wider dissemination of information and creative works contribute to and increase social welfare. Intellectual property rights give the right holder the power to prevent the dissemination of creative work. Due to which it appears that intellectual property rights and social welfare are at crossroads with each other. Apart from this, the freedom of expression found in democratic countries is an important element of public policy. Fettering of which impacts the rights of citizens. This fettering is caused by rigid intellectual property rights.

To overcome this difficulty net neutrality advocates for a neutral actor who intermediates communication between each pair of actors, this neutral intermediating actor can receive and re-transmit information originated by each actor to every other actor without filtering or modification, and at low cost. Such a communication system will strongly promote creative works. This has also been echoed by the Supreme Court of Japan which ruled against Intellectual Property rights intervention in the neutrality of telecommunications technology.

Way Forward

The international best practices along with core principles of Net Neutrality helps in formulating a nation-specific neutrality approach.
Primary goals of public policy should be directed towards Affordable Broadband, Quality Broadband, and Universal Broadband for its citizens.
User rights on the internet need to be guaranteed.
Legitimate traffic management should be allowed but should be tested against the core principles of Net Neutrality.
Content and application providers cannot be permitted to act as gatekeepers and use network operations against the core principles of Net neutrality.

The above points can be achieved through the proper recalibration of intellectual property rights to suit the age of information.

Conclusion

Today sharing of information is just a click away. With the constant development in technology, the law is not able to cope up with it. The law remains stagnant and tries to apply old law to new technologies. The debate on concepts of Technological Neutrality and Net Neutrality has immense significance. They are most likely to be the focal point in the information era. The only way law can cope up with the changing circumstances is by recalibrating the intellectual property rights in the age of information. This should be done by striking a balance between the core principles of technological and net neutrality with changing intellectual property rights.