A View From the U.S. Legal Community
David C. Gryce
The United Nations World Summit on the Information Society, which convened in Geneva, Switzerland in December 2003, was marked by the emotional and humanistic discussion of information technology and its impact on the societies that make up the universe of humankind. In particular, Kofi Annan, Secretary General of the U.N., made an impassioned introduction to the undertaking by which the broad constituencies in attendance would address the "Digital Divide." The massive scale of the undertaking and the notion of two summits, the one recently convened in Geneva and one scheduled for Tunis in 2005, suggests a neat or compact solution to the social, economic, political, cultural, and technological "divides" that are now perceived in our increasingly technologically linked world. For those who believe that such a solution is available, I suspect there will be disappointment. For, indeed, the many ills or "divides" identified by Secretary General Annan in his opening remarks were not created, but are emphasized, by the Information Society. Though one could assume a potentially fatalistic view that these ills have been around since the dawn of civilization and are therefore unsolvable, this distinction may actually represent the seed of future change that will lead to the elimination of these ills.
The debate at the Summit in Geneva focused primarily on the "haves" versus the "have nots;" and more particularly, on the elimination of access barriers created by private enterprise to the free dissemination of information, especially where such obstacles are viewed as an insurmountable impediment to greater participation in global commerce. In many quarters, intellectual property laws (e.g., trademark, copyright, and patent) became inextricably linked psychologically to economic protectionism and the furthering of the various divides, all with a distinct undertone of claims of profiteering.
Though pure in intent, such considerations are misplaced in the context of the Information Society. Assuming one acknowledges that the Information Society must embrace an open and competitive marketplace, independent choice as to access becomes the engine of information dissemination method and extent. The best example of this engine of the Information Society is the open source movement. The open source movement is a creative method using conventional copyright laws in an unconventional manner to allow authors to make the fruit of their ingenuity available to all without cost, provided one abides by modest restrictions. The marketplace itself provided the incentive; ingenuity the free access. Does that mean that all computer platforms must be of the open-source type? The answer is no. It is absolutely the province of the author/inventor or their successors to make such choices. Much as the history of the initial steps of Apple Computer, Inc., and Microsoft Corporation reflect different, competitive uses of proprietary rights to protect the fruit of intellectual effort, so, too, does the open source movement. Thus, the initiatives to lower barriers to access is alive under our current intellectual property laws.
The history of the development of intellectual property laws among the nations that dominate the commercial world of today provide important lessons as to the successes and failures of intellectual property law and policy development. This does not mean these laws are sacrosanct. However, it is evolution, not revolution, that is the hallmark of the development of these policies and rights; and evolution in this time of the Information Society will reduce the risk of an imbalance between creator and user of technology.
It is of utmost importance that authors, inventors, and those who create matters of technological, social, political, and personal value in the Information Society perceive appropriate incentives to continue to innovate and work hard to collect the varieties of information that are the hallmark of the Information Society. To those who view the value of the fruits of their labor lies in free dissemination of them, the right to donate that work to the public domain and make it freely available to all exists today. On the other hand, those whose incentives are more commercial or economic in nature must have the right to control access, use, and exploitation on their own terms, so long as that use does not do harm. In the end, it will be the marketplace itself that will govern the "price" to be borne by the ultimate users of the technology and information.
A sadder truth exists in those circumstances where people have no access to the Information Society, because of governmental, technological, or literacy barriers. To the extent that these barriers exist, the nations of the world must unite to break them down, because they are the ultimate barriers to participation in the Information Society. These barriers are also the greatest impediment to the use of information technology to promote and retain cultural matters, because such matters must be spoken with a local voice. Issues of education, infrastructure, and political will are the foundation for achieving global access to the Information Society.
Intellectual property protection and the development of laws to protect the rights of authors and inventors in the fruits of their labors is the next level of endeavor necessary to encourage full access to the Information Society. Those who wish to eliminate or radicalize the intellectual property regimes that have been the foundation for commerce among many nations to date will likely be doomed to repeat many of the errors that the evolution of the existing intellectual property laws have encountered and overcome. Moreover, no such laws will make a difference unless they are enforced. If enforced, they reduce the fear of piracy, infringement, counterfeiting, and outright theft of intellectual property, thus encouraging greater access through the trans-border flow of the platforms, tools, and content provided by information technology.
An additional and necessary ingredient for encouraging greater access is consistency of laws and their enforcement across borders. The European Union's directive on database protection, the Patent Cooperation Treaty, the Paris Convention, and numerous other treaties and international agreements addressing intellectual property rights reflect a growing trend toward harmonization of intellectual property laws. This harmonization of national laws is the most fertile legal ground for opening access to and enriching the citizens of the Information Society.
Therefore, eliminating the barriers to individual freedom, including matters of political and educational right, is the most fundamental priority in bringing about the end to the various "divides" that make up Secretary General Annan's Digital Divide. The next priority is to establish and harmonize intellectual property laws throughout the countries of the world to facilitate and give confidence to the trans-border flow of technology and information for the peace and prosperity of the global community at large. This effort must acknowledge and protect the rights of authors and inventors in their works and must afford nations the liberty to determine the best mode for accomplishing this protection through their national laws. Then, harmonization at the international level can become the by-word of all to expand the reach and constituencies of the Information Society.
David C. Gryce
Arent Fox Kintner Plotkin & Kahn, PLLC
1050 Connecticut Avenue, N.W.
Washington, DC 20036