ICTlogy

Moderator: Miquel Peguera. Lecturer, School of Law and Political Science (UOC).

The Exceptions’ Sun Also Rises: When Fair Use Is the Solution.
Pedro Letai. Professor of IE Law School

There is a need to restore the legitimacy of copyright. But, of course, re-balancing its role before other rights. And we have to go back to the origins of copyright: incentivating creation.

These incentives have limits and exceptions: private copying, incidental use, academic use, quotation, parody, etc. But these limits should not be harming the legitimate activities of rights holders.

The problem is that users (user generated content), search engines, etc. are doing cutting edge uses that are not appropriately contemplated by the Law.

So, the norm should be a little bit more open so not to harm neither the creation of authors nor the creation by non-professionals, the diffusion of the creation of the former or just emerging industries based in digital content.

3d Printing, the Internet and Patent Law – A History Repeating?
Marc Mimler. Queen Mary Intellectual Property Research Institute, Centre for Commercial Law Studies (CCLS), Queen Mary University of London

3D printing was initially thought for rapid prototyping. 3D would normally begin with a designer drawing the blueprints of the object to be printed, but scanners have evolved enough to be able to scan 3D objects, map them and then be able to replicate them on 3D printers.

Some advantages: reversing offshoring low-cost labour economic activities, reducing the environmental impact by reducing transportation of goods, empowerment for the end user that can now print their own designs, etc.

On the other side, 3D printing can imply direct patent infringement (creating replicas and counterfeit). But also indirect patent infringement, as virtually anyone can create those replicas.

There are some differences though: how the invention is put into effect, how the patented product is produced (as sometimes the process is part of the patent, or sometimes it is just the process what is the object of the patent), etc.

3D printing means that is not only copyright that has to be rethought in a new digital realm, but also patent law.

Intellectual Privacy: A Fortress for the Individual User?
Irina Baraliuc.Research Group on Law, Science, Technology & Society (LSTS), Vrije Universiteit Brussel (VUB), doctoral researcher

There is a public debate on fundamental rights in the digital context, which has ensued a judicial activity on the balancing of fundamental rights.

Julie E. Cohen defines intellectual privacy as the breathing space of intellectual activity: informational privacy, spacial privacy. Neil M. Richards speaks of ability do develop ideas without any interference: freedom of thought and believe, spatial privacy, freedom of intellectual exploration, confidentiality.

These concepts are very related with privacy, data protection, freedom of thought, freedom of expression… and copyright.

Concerning privacy and data protection, there are some points to be made: how the lack of copyright in the private space can affect creationor intellectual privacy; how DRM can affect it too, etc.

Surveillance can affect freedom of thought and thus creation, intellectual activity and intellectual privacy.

We have the build a copyright-concerned private space online, taking into account intellectual “privacy” or “freedom”, “self-determination” or “autonomy”.

Discussion

Pedro Letai: more that having a comprehensive approach, what we should be thinking about is that there is a change of paradigm (from “everything closed” to “everything open” by default). And maybe regulations should be made according to the later paradigm, and thinking more on diffusion of one’s work, rather than (only) providing incentives to creation (of new works).

Panel: The Net Neutrality debate: Stakeholders’ perspective
Chairs: Miquel Peguera. Senior Lecturer, School of Law and Political Science (UOC)

Maite Arcos. General Director of RedTel (Spanish Association of Telecommunications Operators)

The Internet is a complex ecosystem: there are content providers (e.g. digital newspapers), service providers (e.g. Google), facilitating services (e.g. PayPal), connectivity providers (telecoms), user interfaces (e.g. Windows) and the users. Most of these actors are interconnected, but content and service providers are (usually) not connected with telecoms, which has caused several problems between them, amongst which who pays for the intensity of usage of the networks and whether content and services should be served on a neutral basis.

And there is an increasing pressure on telecoms as traffic increases at highest rates year after year… while Internet access charges have been diminishing in real trends. Content and service providers have no incentives on providing “light” services (there is no “price” on the bytes they transfer). It ends up with operators not being able to catch up with investment needs to maintain a quality service.

Possibilities:

1. Stop investments, while degrading the service.
2. Increase Internet access fees.
3. Product and service differentiation.
4. New negotiation with service and application providers to look for new and more balanced agreements.

Telcos do not thing #1 and #2 are an actual possibility, so we should be exploring #3 and #4.

Andreu Teixidor. Director de estrategia editorial de BUBOK

The printing press did not change the way to publish writings, but changed the world, as the Internet is doing to ours. The Internet is changing how works are published, but also how will democracy be transformed, the way we feel, etc. So, neutrality is not about an industry, it is about how we share our future.

Ofelia Tejerina. Lawyer. Asociación de Internautas

A first problem, dire problem, when it comes to network regulation is that policy makers usually do not understand the new nature of a digital society.

There are prior stages to net regulation that have not been satisfied as transparency or accountability of telcom practices.

And this transparency and accountability has to be guaranteed by the Judiciary branch, not the Government and of course not the private sector. And it is the Legislative branch that has to find out how to update the laws that we are using and that are completely obsolete.

One of the most important reflections has to be around pricing:

• What are we really paying? Infrastructures? Content? Services? At what cost?
• Who should be paying? Should any prosumer pay when they upload (and not only download) content?

Discussion

Ismael Peña-López: why don’t we nationalize the infrastructures? Wouldn’t that be solving many problems at once? Arcos: the problem would then be who pays for the infrastructure, would it be taxes? fees paid by the operators?

Antoni Elias: another problem would be how innovation on infrastructures would be triggered by public initiative. Most innovation comes from competing infrastructures, which would cease to be if they were to be merged under a single public infrastructure. [own short comment on the latter is reminding what happened with innovation in railroads in the UK once privatized or in electricity suppliers in the US]

Chris Marsden: it is not true that most infrastructures are paid by private money, as many last milers already know, having to pay Internet access from their own money or being supplied by the government as part of their universal access policy. On the other hand, the investment is nothing compared with the insvestments in railroads in the XIXth and XXth centuries, while benefits would most probably be way higher. Concerning competition amongst networks, what is more common is that telcos do share networks and just rarely compete on that issue.

Javier de la Cueva: why is it that the OCED states that we have the most expensive broadband services? Arcos: Spain is one of the few countries where there is a real choice where to get your broadband service. Besides, quality standards in Spain are very high, but this is not taken into account in the measurements performed by the OECD.

Panel: The Net Neutrality debate: The Policy Options
Chairs: Miquel Peguera, Senior Lecturer, School of Law and Political Science (UOC).

Antoni Elias, Professor at ETS d’Enginyeria de Telecomunicació de Barcelona, Universitat Politècnica de Catalunya (Telecommunication Engineering School at UPC)
The debate on net neutrality: regulation-based policy options

Four stages that stress the Internet:

• Technical complexity
• Legal complexity
• Economic complexity
• A social engine

For all these reasons there are arguments enough to have a supranational structure to regulate the Internet. There is no solution on the issue of net neutrality without this supranational regulatory institution, as the Internet knows no borders. Especially when most communications run over what we generally call the Internet: and IP-based protocol with a name system regulated by the IANA/ICANN.

Telecomms used to charge by access to the service (line rent) and for each use of the service (e.g. minutes called). With DSL, the paying system changes and operators tend to be paid through flat rates. This change implies that the growth of usage is not (directly) associated with a parallel increase in income. Does this scale or is this sustainable?

If we compare the Internet with the printing press, what we might be facing now is how the Internet opens up a new enlightenment as the press did in the XVIII century. But, for this new enlightenment to happen, like the printing press, the Internet must be free from control.

Innovation and investment in networks are as important as the new applications, services, contents or devices. And, of course, traffic must be managed and users and services must be managed too. But managing is not discirminating: discriminating is treating different what is not, not treating different what is different.

Joan Barata, Professor of Communication Law and Vice Dean for International Relations and Quality at Blanquerna Communications School, Universitat Ramon Llull

Net neutrality is not (only) about technology.

There is a big difference between hetero-regulation and self-regulation. And self-regulation might not be enough, so external regulation may apply.

And it is not (only) about discriminating traffic, but also, for instance, about the design and functioning of search engines: how do they search, how do they show the results, etc.

The problem is that if we add a regulatory burden to the carrier, we are also adding to it the possibility to open and peak on the packets that it is carrying. So, we may have a trade-off between free competition and privacy or even security.

‘Reasonable’ discrimination is also a complex issue. It is not ‘reasonable’ to discriminate on a monopolistic basis, to avoid competition. On the other hand, it is not ‘reasonable’ to discriminate on a politics basis, banning specific ideologies. But, would it be ‘reasonable’ to discriminate if the user wants so? The FCC acknowledges that whenever the user has control over the discrimination, that is ‘reasonable’.

But the discrimination based on what you pay is not ‘reasonable’.

So, when we speak about regulations — and regulators — it may be a good idea not to design it to regulate networks, but also with the aim to regulate content, as net neutrality is a matter of both worlds: technology and society.

Ángel León, State Department for Telecommunications and Information Society
Net Neutrality: a critical vision of the normative approach

Why are we speaking about Net Neutrality when al the goals seem to be the traditional ones that applied to the regulation of telecommunications as we used to know them?

A first difference is using Net Neutrality and its regulation as a unifier of different problems or open topics on telecomm regulation. A second one is that Net Neutrality only applies to a specific kind of networks: the Internet. And a third one is that the regulation will apply regardless of the size or market power of the operator.

Most of the regulation on Net Neutrality focus on the quality of the service. But some obligations we impose on the operators just do not allow them to provide this quality service.

On the other hand, there are some practices that circumvent any kind of restriction, like being able to control the presence of the user at a given time, where is the user, knowing their capabilities to connect, being able to stablish different pricing systems, etc.

The usual Net Neutrality approach favours a layered model, with a neutral point of access, but a discriminating service. Indeed, it does not allow for priorities, or different treatment for different cases.

Internet represents a new paradigm which does not allow for traditional regulatory approaches. It’s value change has become so broad, that regulating only access or some specific checkpoints is almost useless.

Discussion

Chris T. Marsden: wouldn’t it be possible to try and sync Europe with the US? León: the problem is that laws and rules (norms, regulation in general) are two different things. And in the case of Europe, Laws are really behind providing an appropriate framework within which rules and norms can be designed. That is not the case of the US, where the FCC can act powerfully with a Law scheme drawn in 1996.

Miquel Peguera: what is the future like? Barata: one of the most important things will be being able to put the correct questions and being able to explain them to the population at large. Elias: the collapse of the network is not something that one can envision, but it is nevertheless a powerful argument against Net Neutrality. Indeed, it is the chaos and anarchy of the Internet what made it the rich space that it is. León: the citizenry wants an open Internet and governments should provide the framework for that to be possible. The question is how Net Neutrality can enter laws: as a right, a regulatory principle or a goal. And each one requires a very different approach.

More information

• El concepto de net neutrality y la tensión entre regulación pública y autorregulación privada de las redes, by Joan Barata.