Intellectual Property and the ‘Digital Divide’

Abstract

1. Introduction The literature in social sciences relating to the information and communication technologies (ICT) addresses aspects of the problem of digital divide. Unfortunately, very little has been written on the legal dimension of the same problem. Even then, the focus has been on policy and regulatory issues surrounding access to ICTs (Gonzalez, 2005a, p. 73). Far less significance has been given to the problem in the intellectual property (IP) literature, though some of the debate on the continuing expansion of IP indirectly touches on it. This article aims to examine how IP might contribute towards the digital divide and the possible ways and means of reversing its negative impact. As already mentioned, the ongoing debate on the further expansion of IP to cover ('properties') every imaginable form of information and calls to curtail or revise such expansion indirectly link with the urge to lessen whatever impact IP might have on the digital divide. While the literature critiquing IP expansion towards the end of the 20th century has largely developed in the context of concerns for the continuity of creativity and innovation as well as cultural progress in the industrially advanced societies, this article seeks to scrutinise the narrower problem of how IP might have impinged on the digital divide. This can be achieved by moving beyond the general denunciation of current IP as somehow outdated and as a mere stranglehold over innovation and human progress; instead, the article explores the nature of IP and the manner of its evolution over the centuries within the framework of the demands and expectations of economies and societies, whether industrial or non-industrial. The benefits of such an approach are that the critique of the system will be grounded in the history, economics and technologies of countries and nations that gave rise to it as well as that any proposals for validating, reforming or overthrowing the system will not appear whimsical or utopian. The article is organised in four sections. Section 1 defines the concept of 'digital divide'. Section 2 outlines whether and how IP law has coped with the digital revolution. Section 3 then reviews the perspectives of the relevant stakeholders in stemming the digital divide: the OECD and the WSIS; global corporations such as Microsoft; NGOs and the Friends of The Intellectual Commons. Section 4 brings together, and critically assesses, the various strands of views on possible way(s) of bridging the digital divide in terms of current IP law and policy and in light of any emerging trends. The article concludes that, while IP does contribute to the digital divide, some of its critics fail to recognise the paramount role of the economic and social environment within which it has developed; consequently, any proposals for overthrowing IP leaving that environment intact will remain fanciful. 2. The 'Digital Divide' Defined The term 'digital divide' has become popular shorthand to refer to any perceived inequality in the use of information and communication technologies (ICT); however, no clear consensus has emerged in defining it (Ibid). More often, the term is used broadly to denote the gap the technology haves and have-nots as a whole. One commentator refers to the patters of development arising from the unequal access to the new world of instant communications and infinite information on demand (Alexander, 1996, p.195). He argues, In a world governed by information, exclusion from information is as devastating as exclusion from land in an agricultural age (Ibid). Occasionally, there is tendency to view the concept as equivalent to the gap in information; in other words, not just in access to facilities alone. A report prepared for UNESCO, by contrast, views gaps in the level of ICT introduced by countries, between 'ICT-haves' and 'have-nots' as a measure of 'the digital divide' (Sciadas, 2003, p. …