ISPs, human rights and power

Some really interesting discussions at BILETA from several speakers (Emily Laidlaw, Chris Marsden, Lilian Edwards, Dinusha Mendis, Nicolas Jondet) about the human rights of individuals (freedom of expression, ability to vote, be educated, access important health information etc etc etc) which could be affected by a disconnection under the "hopefully it can still be avoided" Digital Economy Bill. Into the wash (sorry, unfortunate term given the prospects of the DEB being part of the wash up procedure) must also go the ECHR rights to enjoy property of the individual, rights not to be discontinued without a hearing before a court....To this must be added concerns about the more popular ISPs, who might be argued to be in a dominant position (although this would of course depend on the market...). Might it be abuse of a dominant position to disconnect individuals when this might have human rights consequences - even if the ISP does so by following legislation? Something else to mull over....

BILETA and standards

The BILETA conference was lots of fun in lovely Vienna. More substantively, I found it very helpful preparing my paper on "The place of IP in a world of environmental change". A piece which started out looking at the problems of IP in relation to new climate change technologies and what could be learned from human rights and in particular competition in the fields of health and software turned into a bit of a call for more standards agreement - not where I thought I would end up.

But the uncertainties in relation to when the EU (and more so the US) might require the sharing of technologies for use for their existing purpose - so no new technical development of product (even with the EU Enforcement Guidelines and the Commission Microsoft decision); and the Dutch decision in SK Kassettan (need to request a licence for there to be a competition defence, and a strong suggestion that patent and competition actions should be separate); suggests that competition law will be of little assistance. And although there is a strong interaction between human rights and climate change (as recognised by 2008 and 2009 resolutions), the experience from IP and human rights (resolutions 2000 and 2001, General Comment 2005) suggests that seeing a clash between two fields will not lead to any (at least immediate) action.

SO, if there is a private standard which lots of people join (but not an open standard, in the manner receiving lots of attention just now in the EU Digital Policy Agenda) then, depending on the terms of the licensing structure(s), joining a standard this might be a much more effective way of access to technology being assured. Well, at least until the Rambus, Qualcomm, and Nokia battles regarding disclosure and FRAND arise again... Something to ponder in the weeks ahead.

Oh it seems to be March

So, where does the time go. Since I last posted, I spoke to the University of Edinburgh's prestigious Chevening Programme of visiting students on "Controlling the change? The place of intellectual property" in the context of their exploration of Finance and Investment in a Low Carbon Economy. As I'm spending more and more time wondering about climate change technologies as possible essential technologies, and the possible impact of IP, competition and human rights in these respects, it was very stimulating to share ideas and hear a different perspective.

Back in the legal field, I'm continuing work on climate change, particularly for BILETA in Vienna. I also attended the most excellent "Contextualising intellectual property in innovation systems perspective" at the European University Institute. Building on the "Un-Ip" workshop we held in Edinburgh at the end of 2008, this looked at the central power of IP within the innovation framework and ways in which we are and can move away from this model. Can human rights and competition assist businesses and funders in choosing to take a different approach - wait for the collection, but discussing it was a good way for us all to wake up first thing last Thursday.

We were also delighted to welcome Arthur Levin, now Chief of the International Telecommunications Union TSB. He explored "Engineering Legal Solutions to Climate Change" - a reminder of the links between IP, standards, and power battles which are inherent in determing the impact of all new and old technologies. I hope to get more involved in the Focus Groups and consultations of the ITU - I think its a really important part of the ICT and also climate change debate.

And finally Gikii V, The Voyage Home, 28-9 June 2010 http://www.law.ed.ac.uk/ahrc/gikii/2010.asp. Hope to see you there!