Intellectual Property and the Digital Divide

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Journal of Information, Law & Technology

Intellectual Property and the Digital Divide

Dr. Assafa Endeshaw

Reader in Information Law

School of Social Sciences & Law

Oxford Brookes University

This is a refereed article published on 24th October 2008.

Endeshaw, A., “Intellectual Property and the Digital Divide”, JILT 2008(1),

Intellectual Property and the Digital Divide1
Over the last three decades, the role of intellectual property (IP) law in the economy, trade and business as well as in social life has grown enormously both within industrial nations and on the international level. While the scope of IP has expanded in all kinds of directions, to cover all manners of ideas and concepts, at the same time, IP has become fragmented and incoherent. The resulting uncertainty and confusion about what exactly constitutes IP and the extent to which society can afford to grant and protect them has begun to impact negatively on science and innovation, economies and cultures, across the globe. The professionals, legislators and policy makers have already been repeatedly called upon to revisit this problem (the latest in the UK being the Adelphi Charter). An examination of how IP might impinge upon the digital divide addresses the very same problem, albeit from a different angle.
This 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.
Keywords: Intellectual Property, Digital Divide, Information Society
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.

  1. 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 between the technology haves and have-nots as a whole. One commentator refers to the "unequal 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.1); indeed, it used a "Digital Divide Index (DDI)" to "track the diffusion and uptake of ICTs over time and across economies and regions” (Ibid, p.iii). Norris takes the 'digital divide' to mean "a multidimensional phenomenon encompassing three distinct aspects": gaps between the industrial and developing countries ("global divide"), the information rich and poor within each nation ("social divide") and "the difference between those who do and do not, use the panoply of digital resources to engage, mobilize and participate in public life" ("democratic divide") (Norris, 2001, p.4).
Paré (2005, p.88) disagrees with the 'binary conceptualisation of the digital divide’ which looks to the rate of access as the sole determinant and proposes the use of "socio-economic variables such as capability/skills, content, literacy, income and culture as well as the nature of commercial and regulatory environments, that account for the absorptive capacity of societies toward technological innovations”. Presenting their findings of a study of the problem within the US, Mosseberger et al similarly point out, "...having access to a computer is insufficient if individuals lack the skills they need to take advantage of technology” (Mosseberger et al., 2003, p.1). They add, "Access is undeniably important, but the real policy question is how well society will be able to take advantage of the opportunities offered by technology” (Ibid, p.5). To answer that question, they looked at the "skills divide", the "economic opportunity divide", and "the democracy divide" as being crucial to their studies.
At the background of any determination of the digital divide are the differing levels of access to information resources or facilities in some countries or communities as compared with others. Indeed, the degree of penetration of ICT (and elements of such) in all countries has been regularly monitored to assess whether countries, communities or groups within them have moved further ahead than, or fallen behind, others. Leagues of tables have been regularly issued by various organisations (See, for example, UNCTAD, 2006; Internet World Stats) and deployed in analysis of trends and issues.
Regardless of the differences in approaches or terminologies used in diagnosing the nature of the problem of digital divide, it would seem reasonable to hold that issues relating to affordability and availability of the basic infrastructure for ICT that lie within the competence of governments and private businesses differ greatly from those of resources that communities, groups and individuals may or may not muster to take advantage of that infrastructure and deploy them for their everyday needs. Yet, all of these in turn depend ultimately on the level of industrialisation and commercial standing, or lack thereof, of the relevant country vis-à-vis other countries. Any tale, therefore, of a digital divide which does not link achievements or failures to the standing of a country within the global economic and technological dynamics would not only be futile (as lacking in an essential perspective) but also devoid of logic (by ignoring the relativism inherent to comparisons of divergent cultures, geographic locations and histories).
It is also the author's contention that any meaningful discourse on the digital divide should concentrate on the impact of the digital revolution on nations' or communities' successes or failures, at most, since the late 1980s. To extend any such studies to times and technologies beyond the onset of the digital revolution will not only lead to confusion but end up restating the obvious conclusions that development theories (especially the dependency school) on the post-War years have long ago reached: developing countries (DCs) being at the bottom of the pile without much real prospect of getting out of their decay (See generally, Amin, 1976). Merely to translate those long-standing conclusions into digitalspeak, stack them up as the ever widening digital divide and come out thundering against the 'information rich' or 'technology haves' will be to rehash a paltry truth everybody has known all along.
On the other hand, an investigation of the digital divide in terms of the incidence and spread of elements of ICT, such as the Internet2 or cyberspace, in countries, communities or groups or per head of population without any reference to the prevailing disparity in economic, technological and other forms before the onset of such elements would merely lead to tautological conclusions. Surely, the adverse or other impacts of the digital revolution could be established properly if such an investigation takes account of the prevailing disparity among countries, groups and communities before its onset. Moreover, a determination of the existence or otherwise of the digital divide should require a perusal of all elements of ICT across the board rather than one or a set of them.

  1. Intellectual Property and the Digital Revolution

There is very little controversy over what constitutes "intellectual property" (IP) though, occasionally, confusion arises about its boundaries and the legitimacy of private, non-commercial use of such property. In theory, all forms of creative works that have been fruits of labour and 'perspiration' and proved to have established a modicum of novelty over and above that currently available to society can claim protection under the law (see the figure below) and in the name of the creator. In theory, therefore, any work embodying a quantum of creativity, Q, is eligible for a form of protection for a period of time, T, regardless of which category it falls under (For a fuller discussion, see, Endeshaw, 2004). The grant of a proprietary status to such works under specific forms of legislation or by the courts has developed into an unquestionable facet of every industrial society for the past 150 years or so.








Figure 1: Principal Categories of IP

IP has traditionally been classified into four categories: patent, copyright, trademarks and designs. All save copyright (expressions) arise from registration of the respective form of creative work (invention, signs and appearances) with government authorities (previously called the patent office but increasingly changed to intellectual property office) and the issue of a certificate by the same authorities specifying a named person’s right to use the creative work on an exclusive basis. The right holder decides whether to apply the creative work to produce goods or services for sale or licence it to others to use the said work towards the same objectives. This right enables the creator to recoup expenses incurred in the course of the creative process that led to the work such as research and development (R&D) in the case of inventions. This is particularly important for huge companies such as pharmaceuticals that engage in continuous and expensive R&D. A lot of commentary has asserted that were inventors not allowed to keep the right to exploit their inventions to themselves, the stock of new ideas generated in societies might dry up. Other views have also contested the relevance of patents for inventions though those views are heard less and less these days.
The nature of copyright differs from the 'industrial property' categories largely because the creative process takes on a passive form leading to no transformation of material surroundings it captures as its setting (Ibid, pp.357-358). Thus a painting remains a reflection of the person or thing it is presumed to capture in lines and colour without anything happening to the person or thing as such. This contrasts with the physical transformation of a person through plastic surgery and possibly leading to claims of a design or an invention. The overall provision in copyright for expressions of whatever form has enabled it to provide refuge for all sorts of non-industrial, non-material or, in short, passive activities extending from poetry to dramatic episodes to mime to stage performances (musicals, circuses, acrobatics) to electronic circuitry (software).
Any serious opposition to the grant of rights to ideas in the forms that have come to pass emerged from the second half of the 20th century from previously colonial countries that sought to modify it to reflect their economic and cultural needs. It was only since governments and legislature in industrial nations revised, updated and extended IP in many directions, both through the Trade-Related Aspects of Intellectual Property (TRIPS) and afterwards in the urge to cope with the impacts of the digital revolution, that disquiet on the renewed status of IP within these nations too has gained ground. Today, both groups of nations have found advocates, respectively, for change and rethinking of the post-TRIPS status quo.
The disquiet in the developing countries (DCs) relates chiefly to the inappropriateness of the forms of IP that have been transplanted to them during colonialism and afterwards and the huge pressure mounted against them not to change them to reflect internal/domestic economic, cultural and technological needs. It is now an established fact that any post-TIPIS changes can only be upwards (reinforcements, upgrading, deepening etc) whereas the demand of most DCs from the decades prior to TRIPS was for an overhaul of the IP system as a whole to work out how it might be customised to serve their economic, technological and cultural requirements. At the height of the clamour to make generic drugs available to DCs to fight the HIV/AIDS epidemic untrammelled by IP that pharmaceutical companies strove to erect against them, the 2001 Doha Declaration seemed to pave the way for change. Yet, it only provided a momentary reassurance to DCs of an allowance which was already part of the workings of patent law. In other words, the pretence of accommodating the demands of the DCs was in reality a restatement of existing law and no more.
The repeated plea for rethinking IP even in the industrial nations arises from the assessment that post-TRIPS extensions in IP, in the wake of the digital revolution and the rapid advances of biotechnology have deleterious consequences to innovation,3 culture, the economy and, even, democracy.4 Thus the patenting of human genes has been viewed as not only unethical in commodifying the human body and in appropriating naturally existing substances but also as being harmful to public health and to research (Andrews, 2002, pp.803-808). Patenting of business methods as well as other trivia, traditionally considered outside the bounds of patent law, has triggered objections to the clogging of patent offices with all kinds of claims for registration5 as well as a possible gridlock of the Internet resulting from the diversity of patent grants for software (application programs) enabling online transactions.6
In the realm of trademarks, a growing extension of current forms of protection under the rubric of anti-dilution law (in the US) or “likelihood of confusion” (in its UK variant) portends to erect a protective ring around famous marks way beyond the expectations under the Paris Convention or, indeed, TRIPs. It should be noted that the recent push for increased protection for famous marks was intended as part of the groping towards a solution for domain name disputes that emerged first in the US. Now, we have the additional instrument in the US of the anti-squatting law.
The general perspective that has taken hold everywhere is that of erecting a defence for established marks, particularly against their misuse as domain names. In other words, domain names are still not considered proper subject matter for protection in their own right. The approach of incorporating 'dilution' rather than the loose “likelihood of confusion” standard in the UK for resolving domain name disputes may appear more appropriate; however, the issue is deeper than the adoption or non-adoption of existing protective formula for general or famous marks. Domain names are arguably a species of marks but their impact necessitates more than tinkering with existing rules and procedures devised for trademarks. It is interesting to note that neither the Internet Corporation for Assigned Names and Numbers (ICANN) nor the World Intellectual Property Organization (WIPO) have recognised this or given it any serious thought.
The most popular controversy regarding the relevance of IP to the digital age was, nonetheless, born amidst the information glut that the Internet spawned. Some saw in the huge potentials for the Internet to allow the creation, exchange and dissemination of information as the end of copyright (Barlow, 1994). Others saw the phenomenon as leading to the divorce between content and medium so that, in their view, 'information wants to be free' and cannot any longer be bottled under any law to remain proprietary. The debate continues to rage over whether the creative works that authors produce will be deprived of legal protection even if the means of distribution and exchange appear to have been transformed infinitely more than the printing revolution sparked by the Gutenberg press. Clearly, there is a need to make adjustments to the scope of copyright and the extent of the permissibility for individual users and society at large to share in the fruits of others' labour but calls for the abandonment of copyright remain illusory.

  1. Perspectives of Stakeholders in Bridging the Digital Divide

While there is growing consensus among governments, corporations and the general public that the digital divide needs to be narrowed, if not eliminated, the attitudes of the different stakeholders towards its nature and the ways in which it can, or must, be tackled vary greatly. In that sense, the approach towards bridging the digital divide appears to be just like arresting global warming. As regards the latter, there is almost universal agreement that global warming needs to be stopped and even clawed back for the good of humanity but the problem of whether and how that can be done continues to be as thorny as ever.

The World Summit on the Information Society (WSIS)
The World Summit on the Information Society (WSIS), probably the largest and most representative global body that could address the problem of the digital divide, adopted a Declaration and an Action Plan (Geneva, 2003). It recognised that "the benefits of the information technology revolution are today unevenly distributed between the developed and developing countries and within societies" and expressed its commitment to turn "this digital divide into a digital opportunity for all, particularly for those who risk being left behind and being further marginalized” (International Telecommunications Union, WSIS Outcome Documents, December 2005, Geneva; paragraph 10 of its Declaration of Principles).
In order to achieve these goals, WSIS sought to mobilise governments, "the private sector, civil society and international organizations", in other words everybody, to express "strong commitment" and "digital solidarity, both at national and international levels" (Ibid, paragraph 17) as iterated through the Digital Solidarity Agenda within the Plan of Action. As usual with international fora and agencies, the major plank of the planned effort to bridge the gap takes the shape of calls for more aid and assistance from all the stakeholders, amongst others, through the proposed "voluntary Digital Solidarity Fund" (Ibid, paragraph 61). If one were to reread the documents of the UN Conference on Trade and Development (UNCTAD) on the contentious issue, in the 1960s and 1970s, of how to effect transfer of technology (TOT) to DCs, by inserting ICT in place of TOT, one would find a striking resemblance. The parallels of the declared commitment to promote access to, and use of, ICTs today with the equivalent hopes and urges to do the same for TOT three decades ago, leave one in no doubt about the identical nature of the problems.
Even where the general approach towards tackling the current problem of the digital divide appears to be a throwback to the past, one might hope that the WSIS would supply a few points of departure in the realm of IP. WSIS states, instead,
Intellectual Property protection is important to encourage innovation and creativity in the Information Society; similarly, the wide dissemination, diffusion, and sharing of knowledge is important to encourage innovation and creativity. Facilitating meaningful participation by all in intellectual property issues and knowledge sharing through full awareness and capacity building is a fundamental part of an inclusive Information Society (Ibid, paragraph 42).
In effect, WSIS is reaffirming existing forms of legal recognition available to creators of new works while at the same time calling on them to engage in 'knowledge sharing'. This is clearly an attempt to take no side in the growing dispute between proprietors increasingly bent on more stringent demands for protection and enforcement, on the one hand, and end-users and the general public, on the other, who have sought to shift the balance in their favour by either narrowing down the scopes of protection (See, for instance, Khor, 2002, pp.214-224), lessening the burden on under-resourced communities, groups or individuals (Ibid) or, even, by throwing certain forms of information open to use by anyone.7
As if to deflect criticism of the one-sided approach of sanctifying a steady course in IP just as proprietors would have expected it to, WSIS has inserted some bland notions of sharing information and knowledge in the Geneva Plan of Action. While seeking to prompt governments and other stakeholders to create for the public "affordable or free-of-charge access" to the ICT and provide help for such, it does not fail to mention the necessity of "respecting Intellectual Property Rights (IPRs) and encouraging the use of information and sharing of knowledge”.8 Yet, this approach of paying homage to the status quo betrays a total lack of will to acknowledge the problems that IP faces from the digital revolution as well as the swathe of opinion on the need for change in IP that is sweeping the world, including the corridors of corporate powers and governments. Constituted as it is of governments and other bodies with a spectrum of varying (and at times diametrically opposed) views on all the attendant factors that impinge on the digital divide, the WSIS could not conceivably have openly recognised, leave alone agreed, to settle the numerous issues that bedevil IP in the information society. Yet, one would have expected of it, at least, a clear statement of the nature of the problems that will continue to haunt it and fuel the digital divide. But that has not happened. The WSIS has merely followed the beaten track of the UNCTAD and will probably not escape the fate of the latter either -- hovering between outright annihilation and irrelevance.
The Organization for Economic Cooperation and Development (OECD)
The OECD does not seem to recognise any form of digital divide among or within its members though it acknowledges the existence of differences in the levels of impact on productivity and diffusion of ICTs between countries and the need to "facilitate access by disadvantaged groups as well as by people living in remote areas” (OECD, 2003, p. 23). Crucially, it maintains the remedy for this to lie within market forces:
Market reforms to reduce the costs of new technology can facilitate access by disadvantaged groups as well as by people living in remote areas. The development of infrastructure is the key to greater inclusiveness. Competition is important for this to happen, but may not be sufficient in all cases. If governments want to ensure that all areas and social groups eventually have access to high speed Internet services, they must do this in a least-cost way that does not distort market forces (Ibid).
Inevitably, while it indirectly seeks to address inequality of access to ICTs within its members, the focus of its recommendations to its member states is to exhort them to adopt strategies to harness ICT for the further growth of their economies. The 2003 report, therefore, dwells on implementing measures and policies to further entrench ICT in the economies of OECD countries. The OECD considered the problems that afflict DCs only in passing. Even then, the OECD merely seeks to replicate in DCs the policies it considers to be appropriate to its member states:
Many of the policies recommended in this report apply to developing countries as well. Moreover, development co-operation policies have a key role to play in helping developing countries create the right policy environment to attract ICT investment and build the required capabilities to make use of ICT as part of achieving their broader economic and social goals (Ibid, pp.23-24).
The OECD's stance resonates with that of the Global Economic Forum's 'Global Digital Divide Initiative Taskforce' (GDDI) <>. In spite of its expressed commitment to address the problems of the digital divide, the GDDI has shown a reluctance to propose any measures beyond manipulating the operation of the market: loosening up regulatory barriers in the acquisition and distribution of ICTs. The GDDI has not at any point raised any notion of tackling the possible barriers that IP might present to access to ICTs and diffusion of knowledge.
Not surprisingly, the global ICT corporations have adopted a similar perspective to that of the OECD. They have sought to demonstrate their appreciation of the problem of the digital divide although their responses largely remain limited to the provision of technical assistance and reduction of prices in certain respects. Sun Microsystems, for instance, routinely makes statements on bridging the digital divide without expounding any corporate policy as such (Sun Microsystems, 2006). Most of the statements are in connection with new resources it has made available in the market to the buying public across the world. In essence, the repeated references to the 'digital divide' are mere marketing ploys and bear no relation to the urge to take account of the widening gap and provide means of narrowing it down more specifically in under-resourced parts of the world. Even when mention is made of offers and grants by the corporation to certain schools and communities, these are invariably in terms of computers and minimal amounts of technical assistance in a limited fashion.
Microsoft likewise boasts of the variety of forms of assistance it provides to "more than 139 countries across" Europe, Middle East and Africa (Microsoft, 2005). Thus it states, by reference to the Middle East
We are working with governments, NGOs and others in the region to explore fresh and innovative ideas that will remove barriers to work and help governments take advantage of the global knowledge economy. Together we are investing in ICT to streamline government services and building high-quality systems of education that will empower youth, women and the unemployed with the skills and knowledge they need to realise their potential (Ibid).
In connection with Africa, Microsoft declares
At Microsoft we are committed to playing our part in Africa's development by forming partnerships to build the local knowledge economy: enabling ICT access and skills development and the creation of localised content for African communities, teachers, students, governments and businesses (Ibid).
Microsoft, nevertheless, appears to reject any notions of radical changes in the status quo regarding the roles of IP in the digital divide. Bill Gates reportedly castigated those who seek "to reform and restrict intellectual-property rights" (Kanellos, 2005) as follows:

...I'd say that of the world's economies, there's more that believe in intellectual property today than ever. There are fewer communists in the world today than there were. There are some new modern-day sort of communists who want to get rid of the incentive for musicians and moviemakers and software makers under various guises. They don't think that those incentives should exist (Ibid).

In his view, only piecemeal changes to the system, such as fine-tuning the patent system could be appropriate. As for the role of IP, he contends "... when people say they want to be the most competitive economy, they've got to have the incentive system. Intellectual property is the incentive system for the products of the future” (Ibid).
International Non-Governmental Organizations (NGOs)
The position of international NGOs as regards tackling the problem of the digital divide appears to be to favour reforms that could address the needs of deprived groups within the industrial nations and DCs in general without committing to exactly what sort of reforms would be acceptable.
One of these NGOs is ActionAid which welcomed the report of the Commission on Intellectual Property Rights in 2002 for "acknowledging that intellectual property rights legislation has a detrimental effect on poor countries” (Kirby, 2002). It saw the report as exposing the monopoly over biotechnology that patents allow big business to exercise, "thereby prioritising profit over the needs of poor farmers" (Ibid). It urged the UK government to follow up the report by initiating a 'radical' reform of TRIPS and the adoption of "a system that protects the rights of poor farmers and supports development worldwide” (Ibid). It warned, "If this report is cast aside, it will be a disaster for millions of poor farmers” (Ibid).
ActionAid has gone further to characterise current copyright law as leading to "excessive pricing, limited adaptability and unavailability of suitable learning materials" in the 'South' and hence adding its voice to the “access to knowledge” (a2k) campaign (ActionAid).
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