When the Internet Has a Party, Everyone's Invited: IP Law Issues at the Internet Governance Forum 2013

When the Internet Has a Party, Everyone's Invited: IP Law Issues at the Internet Governance Forum 2013

There is a little-known place in the world where you can approach absolutely anyone—a Brazilian federal minister or WIPO legal officer; a policy manager at Google or the world's leading cybersecurity expert; an Indonesian LGBT activist or Pakistani digital rights advocate; or someone at some intersection of civil society, government, business, academia, law, technology, or activism around the world—and be assured that, at least for that instant, you will have their attention. No, I'm not referring to Twitter. The Internet Governance Forum (IGF) is the place, and stewarding the Internet is its game.

Stakeholders from all of the above-mentioned groups and more gathered at the Bali Nusa Dua Convention Centre in Indonesia, October 22-25, 2013, to discuss all manner of issues related to internet governance including online surveillance, privacy, big data, online child protection, youth perspectives, cybersecurity and cybercrime, freedom of expression, net neutrality and access to information, human rights in context of the Internet, jurisdictional conflicts and harmonization, international development, and of course, intellectual property (relating mostly to copyright and domain names). First convened by the United Nations in 2006, the IGF is the world's largest and highest-profile conference wholly dedicated to the betterment of the Internet and its continued governance and preservation. With no binding goals, negotiations, or decision mandates, the ostensibly multi-stakeholder affair provides a platform for otherwise-rare direct dialogue between multiple cross-sections of society and mass cross-pollination of ideas, general principles, and best practices, which can be taken back by members to be used in their own decision-making processes.

This year, the Indonesian government—whose national population includes over 63 million Internet users—hosted approximately 2000 delegates from 111 countries, who explored this year's subthemes across 135 workshops, focus sessions, open forums, roundtables, and panels (with more participating remotely and millions checking in on Twitter). Organizers made a concerted effort to integrate into the sessions more tangible policy outcomes that participants could take away with them, as well as attention to national and regional IGF initiatives. Meanwhile, “Edward Snowden” and “NSA surveillance” constituted an omnipresent shadow underlying all discussions, while “Brazil summit” and “Montevideo Statement” infused electric static into the air.

As providing complete coverage of all news, events, discussions, and ideas that emerged during the week-long IGF within one post would be impossible, this article will restrict itself to highlighting certain issues directly encompassed by intellectual property law, particularly those explored in a WIPO-hosted copyright panel titled, “Content Creation, Access to Information, Open Internet”.

1. Square Laws in Round Processes: Has Copyright Policy Gone Awry With Respect To Technological Reality?

This question challenges the notion that current and trending copyright legal frameworks are at all suitable for the way Internet infrastructures and associated technologies work today, suggesting increasing misalignment between laws designed in a more analog world and technological processes where copying is strictly incidental to otherwise legitimate use of the work. Glenn Deen of NBCUniversal asserted that technology should be “policy-neutral”, as in developed without any particular policy favoured or hindered by or coded into the technology itself. In other words, copyright policies should be created such that they fit the technology, rather than the other way around. Other panellists agreed but maintained this is currently not the case—technology has not been made policy-neutral, and through phenomena such as institutional capture of standards fora, it has in fact been designed to promote and enforce certain policies (examples of this are technological protection measures (TPM) and digital rights management (DRM) systems). Misaligned copyright policy, argues Konstantinos Komaitis, takes the Internet for granted and distorts its basic architecture, such as by turning neutral online intermediaries into unofficial law enforcement entities with respect to user behaviour.

2. The Librarians Strike Back: This Isn't the Copying You're Looking For

Ellen Broad of the International Federation of Library Associations (IFLA) made a compelling case for copyright law to pay closer attention to the kind of copying involved in different situations. Sharing others' concerns over unbalanced copyright frameworks, she explained how text and data mining in a library research access context provides a clear illustration of copyright laws not fitting an Internet environment. According to Broad, text and data mining is one of several “productive, non-harmful uses” that operated freely outside the realm of copyright in a print environment, but are now captured by copyright frameworks purely through the incidental copying that occurs as part of Internet-enabled technological processes today. She compared licensing text and data mining, in essence the extraction of information, to “placing a toll on the information highway”.

While Article 5.1 of the EU InfoSoc Directive exempts "[t]emporary acts of reproduction...which are transient or incidental [and] an integral and essential part of a technological process,” in transmitting content between computers, this is a narrow exception that will not encompass all cases that require protection, such as text and data mining. Furthermore, as Broad points out, such a framework presumes infringement unless proven otherwise; one must make an exception rather than find the use not infringing at all to begin with.

Lastly, e-books and their associated licensing regimes present “a huge challenge” in terms of access for consumers, academics, public libraries, and the visually impaired, among other user groups. With respect to the visually impaired, users must overcome obstacles by acquiring a right to remove TPMs from the content (recently enshrined in the universally lauded Marrakesh Treaty, the first-ever agreement to limit rather than expand copyright), and by possessing the technical ability to actually remove the TPM and access the content through assistive devices. In these respects, some at the IGF spoke of licensing regimes “defeating the purposes of the Internet”, particularly in the context of international development, where public libraries can play a valuable role in providing access to information.

3. Say It to Belie It: The Language of Limits and Exceptions in Copyright Law

One current problem that IGF 2013 participants identified with current copyright law is its unbalanced nature: in many jurisdictions and on an international level, rather than balancing copyright against user/access rights as if the latter were of equal weight, laws provide for overarching copyright with specific exceptions that are explicitly carved out. The starting point of the law is not one where the limits and exceptions hold the same weight as copyright; this is reinforced by their being referred to precisely as “limits” and “exceptions” to an otherwise default backdrop of established copyright. Speakers suggested instituting a new international norm that would conceptually elevate rights of access and other “limits” or “exceptions” to the same level as copyright in order to better protect them, as seen in the Marrakesh Treaty. As Susan Chalmers asserted, “We often talk about copyright substantive rights...and having carve-outs for limitations and exceptions.... [W]e should dispatch with that language and think about them as equal partners balancing each other.”

4. Meanwhile at WIPO: Additional Issues & Initiatives

Initiatives and ideas beyond those outlined above were featured in IGF 2013 presentations. These included - according to WIPO legal officer Paolo Lanteri - the WIPO Development Agenda; a WIPO study on copyright relinquishment; and a WIPO-compatible, world-standardized Creative Commons licence (to be released within the next few weeks). Regarding the latter, Ari Gema of Creative Commons Indonesia pointed out the need to educate the general population on the concept of copyright before introducing the Creative Commons license, hinting at cultural and regional differences in the significance and relevance of copyright, and the potential implications for corresponding law, regulation, and policy.

Lest the Marrakesh Treaty be a one-time miracle in terms of internationally-accepted limitations to copyright, the IFLA is working on a Treaty Proposal on Copyright Limitations and Exceptions for Libraries and Archives, to establish “a binding international instrument on copyright limitations and exceptions to enable libraries to preserve their collections, support education and research, and lend materials”.

Lastly, in keeping with the spirit of IGF, a panel titled, "Internet copyright policy: Multistakeholder or Multilateral?" concluded that "multistakeholderism" was the preferred approach to formulating internet copyright policy and frameworks going forward, despite drawbacks such as being potentially inefficient, time-consuming, or inconclusive.

5. Say 你好 to язык.وصول (aka Internationalized Domain Names)!

In a palpable boost to principles of multilingual access and globalization of the Internet, ICANN CEO Fadi Chehadé revealed at the IGF 2013 opening ceremony, to rousing applause, that Arabic, Russian, and Chinese internationalized top-level domains were delegated to the Internet root for the first time. This means that one can now register websites ending in “dot [insert Arabic, Cyrillic, or Chinese characters here]”, resulting in expanded online accessibility for those who use technology—including keyboards—exclusively in one of the three languages added. This will likely have an impact on trademark law in different parts of the world, in the context of branding and domain names, although trademark rights protection mechanisms (RPMs) as managed by the Trademark Clearinghouse (TMCH) currently provide for ASCII (English and Latin) characters alone.

Logging Out

As mentioned above, this was but a peephole into the ongoings of IGF 2013. Even live, it could only be experienced in self-tailored slices given how much was going on at any given moment. For those who are interested in learning more, panel transcripts are available on the IGF website and further comments and insights abound on the #IGF2013 Twitter backchannel, not to mention the multitude of papers, articles, blog posts, updates, and analyses written throughout and in response to the forum. If we care about preserving, protecting, and bettering the Internet as we know it, the least we can do is start by getting to know it.

Cynthia Khoo is a JD Candidate at the University of Victoria. She is currently completing an exchange semester at the National University of Singapore, Faculty of Law.