Internet Society Issues Paper on Intellectual Property on the Internet

Abstract

Over the past years, the idea of how to reconcile intellectual property rights and the Internet technologies and platforms has become a pivotal point of all Internet governance discussions. With the emergence of the Internet as a means of communication, creativity, innovation and ideas and with the increasing accessibility to information, traditional concepts of intellectual property appear increasingly antiquated and inapplicable in a space where information is democratized, people become increasingly more empowered to create, exchange and distribute content and innovation and creativity proliferate. For the Internet Society, policy and technology discussions regarding the relationship between the Internet and intellectual property should continue to address the multiple challenges imposed by the nature and architecture of the Internet. At the same time, we feel that the time is right for the Internet community to reflect and strategize on how to create a harmonious nexus between Internet platforms and intellectual property regimes. In this respect, we believe that a good starting point is the setting of some minimum standards of process and substance that could facilitate and guide such discussions. An important point for the Internet Society in submitting this issues paper is the understanding that intellectual property discussions, irrespective of whether they reflect trademark, copyright or patent considerations and, as long as they primarily relate to Internet concerns or propositions, are part of the wider Internet governance discussions. This pragmatic rationalization is significant in making some subsequent determinations relating to the structure, design and ultimate approach of such discussions. To this end, the Internet Society urges all intellectual property considerations of policy to submit to the following minimum standards: • 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 Geneva Principles as well as in the Open Government Paradigm. The Internet Society believes that this need should further be reflected in agreements like the Anti-Counterfeiting Trade Agreement (ACTA), the Trans-Pacific Partnership Agreement (TPP) and the Canada-Europe Comprehensive Agreement (CETA). • 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. Based on these observations and taking stock of the way the debate has been unfolding over the past few years, the Internet Society would like to take the opportunity and make some propositions, which we believe should transpire all policies on intellectual property. At its most basic and fundamental level, the Internet Society believes that all issues pertaining to the way intellectual property rights are expressed in the Internet space can only be addressed efficiently and systematically through an inclusive and open framework. This makes multistakeholder governance a top priority for us, because we believe that it is currently the only sustainable governance model for (public policy) issues relating to the Internet and its platforms.