Trade Agreements Making Rules In New Technologies, Territoriality An Issue For IP In Digital Age 11/10/2018 by Catherine Saez, Intellectual Property Watch 3 Comments Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)As new technologies have pervaded society, with more to come, policymaking has become a difficult exercise. Rules established before those game-changing technologies might be outdated. A session at the World Trade Organization Public Forum last week looked at how intellectual property rules are faring in the time of digital technologies. Speakers remarked on the role of regional trade agreements in norm-setting, and the growing issue of the territoriality of rights for copyright. Panel organised by CIGI: (l-r) Awad, Geist, Meier, Ashton-Hart, Arewa A panel organised by the Centre for International Governance Innovation (CIGI) and titled TRIPs 2.0 in the digital economy era, looked into the interconnectedness between international trade and intellectual property, and how disruptive technologies have impacted the workings of traditional norms in IP sectors. A key question of the session, moderated by Bassem Awad, deputy director of Intellectual Property Law and Innovation at CIGI, was whether the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) should be amended to answer the new technological environment. Advanced technology has changed how IP works in the global economy, he said. Some 2016 statistics from the European Patent Office show that the office received 5,000 patent applications for inventions related to autonomous objects, more than 50 percent over the previous three years, he said. “It’s coming,” he said, everyone is trying to patent artificial intelligence machines. At the end of 2017, PricewaterhouseCoopers released a report calling on investors to invest in emerging technologies, he said, adding that the World Trade Report released during the Public Forum found that trade in information technology has tripled in the last two decades and reached US$1.6 trillion in 2016. Awad cited a 2017 Guardian article about the Press Association winning a Google grant to use artificial intelligence for creating up to 30,000 local stories a month. Initiatives such as this one are raising questions about the ownership of IP, he said. Trade Agreements Creating World Standards Michael Geist, Canada research chair in Internet and E-Commerce Law at the University of Ottawa Faculty of Law, said there is a growing intersection between trade, IP, and ecommerce. He remarked on the recently signed Canada-Mexico-United States trade agreement, and said one most notable aspect of this agreement is the inclusion of a digital trade chapter, and the increasing overlap around issues that pertain to data, and privacy, data localisation, restriction on data transfers, net neutrality, and safe harbours for internet platforms. “Once you create those so-called standards within an agreement, the likelihood of their proliferation becomes very great and we are already at the point where we are starting to see this template around ecommerce and trade becoming the de facto standard,” he said, which raises some real concerns because some provisions have been established without much public debate or a full understanding of the broader implications of those agreements. As an example, he cited the recent Singapore-Sri Lanka free trade agreement, adopted earlier this year, with “as far as I can tell no public debate,” as the text was only be available several months later. Singapore is also member of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, which emerged after the US withdrew its signature from the Trans-Pacific Partnership (TPP) which has a digital trade chapter. So now Sri Lanka has agreed to similar provisions with no public debate, practically no public debate on these issues, notwithstanding the importance of the digital-related issues, he said. “We are setting the rules of the world in those agreements for decades to come,” Geist said. Wolf Meier-Ewert, counsellor, at the WTO IP, Government Procurement and Competition Division, speaking in his personal capacity, said the challenge of disruptive technology for IP policy is twofold. The first is the issue of transformation, applying rules that were conceived prior to those technologies into the real-life situation where new technologies are dominant. The second issue whether the paradigm for the balance that was found between owners of rights and users of those rights should be transposed or if a new balance should be found. Copyright Registries Should Be Open; Issue of Territoriality Nick Ashton-Hart, Geneva representative of the Digital Trade Network, remarked on the economic inequity in the creative sector, with musicians getting 12 percent of the benefits of global music revenues. It is not a new situation, he said, adding that this inequity relates to the legacy of major phonogram producers and producers who control the terms of trade. Unlike patents where information about inventions has to be disclosed, copyright registries are not public and copyright policy is driven by the “unknown, the alleged.” he said. The use of information is now multinational thanks to the use of cloud services, and keeping the concept of copyright to national level is not efficient. It does not produce a remedy for real infringement and does not produce a process with legal certainty of what you can and cannot do with information, he said. The challenge in the copyright world really is how to administer copyright multi-territorially, and in a more real-time way, according to Ashton-Hart. He said the UDRP (Uniform Dispute Resolution Procedures for domain name disputes) is a great way to do this in the trademark field, but it is easier since the trademarks are registered. It should be possible to require the disclosure of what copyrights are registered, he said. “The situation with safe harbours is not helpful,” he said, arguing, “We all benefit from the concept that platforms that serve a billion people cannot be expected to know what a billion of people are going to say and they cannot expect in real time for judgments to be made about how that may or may not be applicable in different national policy environments.” In a globalised information world, “we are going to have to accept we are not going to see and hear what we want, like we used to,” he said. “We are going to see and hear things that we don’t like,” which is different from content which is “truly, universally illegal.” “We can’t ask information services providers to produce a better world online than we can produce offline,” he said. A few regions are likely to be competing for domination of the artificial intelligence market, as they will produce massive economic benefits for countries that are first movers, Ashton-Hart said, and the question will be raised about how publicly funded research is to be used in these technologies. He gave the example of graphene, a way of producing carbon one atom thick. It is super conductive, he said, “far beyond silicon,” far less subject to heat, and far stronger than any material ever found. It will be widely used in manufacturing processes, he said, and is perhaps five years away. Countries are spending billions on research on graphene, with good reason, but some difficult questions will have to be answered about the social welfare benefit that those technologies will bring and how they will be allocated beyond the simple profit motive, in particular when the research is publicly funded, he argued. He said it will be similar to the debate about publicly-funded research for pharmaceuticals. Olufunmilayo Arewa, Shusterman professor of Business & Transactional Law at Temple University, Beasley School of Law (US), also remarked that in a globalised world, territoriality is going to be a key issue. Meier remarked that territoriality is an issue but the phenomenon requiring more attention is that technological solutions on the net often ignore the regulatory attempts that are made through legislation. 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