The article talks about the TRIPs agreement of 1995 and the concepts of
technological neutrality in e-commerce under its ambit
Modern-day patent laws which are more or less inspired from or related to the
WTO-TRIPs agreement are noticed to be motivated towards technological
neutrality. Technological neutrality has its effects on contemporary laws, which
are non-discriminatory in nature, whether be it Copyright law, Patent law, etc.
Although there are some strict subjective modern-day policies in some countries
which restrict patents and copyrights to a certain field or a particular
innovation category. Most countries have taken inspiration from the concepts of
technological neutrality and global applicability and have extended the subject
matter of laws related to innovation by not restricting them to just one field.
Technological neutrality has also acted as a driving force which is used in the
modern time to define the scope of regulations on trades. Under the European
Framework Directive of 2002, technological neutrality is one of the guiding
principles for the lawmakers or the regulators to see to it that the rules and
policies are technologically neutral.
Trade Governance in the digital age
New technologies have brought with themselves many changes to our daily approach
to commerce. It has also led to a few tangible and intangible changes and
effects in the legal frameworks that have occurred due to the new ways of
approaching a market. This also challenges the WTO as to whether they are
flexible enough to accommodate in themselves the changes caused by the new
rising digital trade. Although in the present time laws have covered the scope
of digital trading, small countries or those countries which are technically
backward, are still trying to catch up with the modern digital trends.
The whole concept of digital e-commerce has led to the formation of policies
that regulate digital technologies and data flow and bring them under the
authority of international trade laws. Several Internet Governance (IG)
organizations have come up to regulate matters relating to internet trade.
Agreements like CPTPP (including 11 countries across the Asia Pacific) and USMCA have
brought under their ambit ‘digital trades’. The concept of digital trade is so
vast and dynamic in the current times that it is not really sure to major
government and regulation offices if trade agreements are really enough to
regulate digital data and data flow. But trade agreements have proved successful
even under matters relating to digital trades because of their binding nature.
The overriding effect of digital trade agreements on existing trade agreements
is very controversial in nature. But ultimately trade agreements are the one way
ahead in the pursuit of binding digital agreements.
Legal Framework – The WTO
Most WTO agreements that are working at the moment are results of the
negotiations that happened at the 1986-1994 Uruguay round. However, the need to
establish a particular framework to regulate trade issues arising from digital
commerce or e-commerce was realized a few years later. In September 1998, the
WTO general council adopted the “Declaration on Global Electronic Commerce”
which would cover issues regarding global e-commerce. The WTO General Council
has had regular yearly discussions and has published reports to examine issues
arising under this particular matter. Most of these issues are related to rule
of origin, right to access public telecommunications and services, to prevent
fraudulent practices, and to protect public moral policies.
Various bodies of the WTO have made their contributions in this matter. The WTO
Council for Trade in services had made a report in 1999 to examine the treatment
of e-commerce under the GATS framework. Another important report was released by
the WTO Council for Trade in Goods which examined the impact and aspects of
e-commerce related to the provisions lied down in GATT 1994, along with
multilateral agreements which are covered under the WTO agreement. Intellectual
Property issues that were arising out of digital commerce were discussed and
examined by the WTO Council for TRIPS.
The financial and economic development issues and the needs of the developing
countries considering the implications of digital commerce were dealt with and
examined in the report made by the WTO Committee of Trade and Development.
Attention has also been to artificial intelligence in the last few years, as AI
is one of the fastest rising technologies and big countries share a huge
interest in it. Data protection under international AI data trade is a worry for
the regulators as small developing countries, which have comparatively weaker
data protection structures and norms compared to the developed countries can be
attractive to exploit for companies in the developed nations. If these
algorithms are not trained and there are not definite legal restrictions, this
might lead to the small countries becoming data exporters, which may include
personal data of citizens, which could be used by companies to examine and make
analysis on data that might not be legal in their own jurisdiction.
The TRIPs agreement
The TRIPs (Agreement on Trade-Related Aspects of Intellectual Property
Rights) agreement was discussed at the Uruguay negotiation round of GATT in
1989-1990. It is binding on all the members of the WTO. It is one of the most
effective and efficient multilateral trade agreements in the history of WTO. It
establishes minimum requirements for the national governments to protect the
Intellectual Property rights of their as well as other nations’ citizens.
Software and digital databases are protected under the TRIPs agreements as
The TRIPs agreement also takes some inspiration from “Berne Convention For The
Protection of Literary and Artistic Works”. The TRIPs agreement is administered
by the WTO TRIPs council which comprises all the members of the WTO. TRIPs
agreement has also led to many bilateral agreements between countries amongst
each other to protect copyrights of their citizens with higher standards.
Such agreements are often called TRIPs+ or TRIPsplus. The agreement also puts an
obligation on matters where previously existing agreements might be inadequate
or not clear enough. It has laid down procedures and principles to be followed
in the enforcement of Intellectual Property Rights. It has civil and
administrative measures and procedures for safeguarding rights, granting
remedies, and in certain situations, criminal procedures to make sure that the
holders can exercise their rights properly.
Technological neutrality has been a big matter of talk in the WTO discussions in
the last few years. The term is supposed to be used for the first time in the
WTO under a report called “Work Programme on Electronic Commerce”, prepared by
the WTO Council for Trade in Services for the General Council. A statement from
the report said that “GATS is technologically neutral as it does not have any
provisions which differentiate between different technologies which are means
used to supply service”. It was noticed here that GATS does not concern itself
with any technological problems. Many members and committees have rejected the
concept of technological neutrality for various reasons. The term “Technological
neutrality” in itself can have various meanings.
It may be used in the context of being a set of standards that are made to limit
negative possibilities. It may also be used as a term used to define the scope
of regulations. In this context, it may even allow the regulators to adopt new
technologies without being burdened by external or legal issues. Technologically
neutral regulations give benefits to regulators in the sense they give them much
more choices in their work and make their work much more flexible. In some
cases, if a regulator wants a certain end product to a vision, he may have to
adopt rules which are not really technologically neutral. An example of this is
the imposition of GSM SIM cards in Europe.
The success of the implementation of TRIPs
TRIPs were originally brought in as a measure against counterfeiting, but their
change in nature over the years is very well visible. It went from just being a
global accord against counterfeit to being a global agreement regulating a vast
range of IP policies. Although many developing countries blocked the
implementation and inclusion of IP in the Uruguayan rounds and also stated that
IP and trade rules must be kept distinct from each other, they lost this fight
eventually when Intellectual Property Rights were eventually covered under the
ambit of TRIPs. But this fight by developing countries did bring some noticeable
changes in the application of this agreement. These statements made by the small
countries led to intense discussions and negotiations, which helped shape up the
agreement to keep up the pace with the modern world.
Although TRIPs was somewhat successful in creating world harmony in matters
relating to trade and IP, it was not able to provide uniform patent policies and
patent protection. There are many reasons for it. A group of countries can be a
part of TRIPs and yet show different IP graphs on a national level due to
various technological and structural reasons.
The principle of “Technological Neutrality
” has been a big matter of
debate in the past few years. It means that the arrival of new technology would
not necessarily mean that old rules and policies would not apply to it. The
Electronic Commerce Work Program of WTO gives a chance to its members to show a
common position on the working of TRIPs in matters relating to digital trade or
e-commerce. It is necessary to make sure that existing rules would work in the
current environment and realize that increasing the use of e-commerce
technologies does not necessarily need new norms or policies altogether. While
considering or discussing technological neutrality, WTO’s principle of
non-discrimination plays a fundamental role in preserving the application of
already establishing neutral rules, and not just focusing on a sole assumption
that there are backdrops to the TRIPs agreement and that there is a need to
overrule currently existing neutrality norms.
The TRIPs agreement in accordance with the principle of technological neutrality
has helped establish a non-discriminatory framework which will help in ensuring
that digital trades and e-commerce around the countries where the agreement is
applicable is done in a fair and free manner. Although binding power of the
agreement is an issue here since it doesn’t have any strong powers over the
members for strict compliance to it. For example, under the rules presented
currently by TRIPs, a trademark or a copyright infringer cannot get away with
his deed just on the defense that certain copyright or trademark was inserted or
stolen through digital means and not the traditional physical means.
Technology is not a definite thing. It is dynamic in nature and its image and
usage can change in the span of a few moments. Often when there are new
advancements in technology and the services that are being provided through that
technology reach such a level of specialization that there arise certain
questions whether the service provided by the particular technology is “new” in
actual sense or is it already scheduled. The evolution of technology has a big
effect on the regulations of the sector the advancement is made. In the case of
TRIPs also it is noticed how it has evolved and increased its scope to include
within itself various forms of intellectual property rights, although still not
completely protected due to its position amongst world governments.
From the 90s to the present age there have been major changes in the trade
agreements which have now incorporated digital trades too within themselves.
Cloud computing and 3d printing have been used as an example for this in
numerous articles and discussions. Another problem that has come up from the
discussions regarding e-commerce and TRIPs is the localization of data and
sharing of data across borders. Developing countries like India and South Africa
have continuously rejected this point of discussion while countries like the
USA, Canada have shown keen interest in such matters. At such an early stage of
discussions, such rejection of a proposal obviously will not be helpful for it
in the near future at least.
Debates and discussions involving technological neutrality have been very
unclear and have complicated the issue even more. It would not even be right to
ask whether an agreement such as GATS is technologically neutral or not, as GATS
does not really specify any technology. Same again with TRIPs, although
officially it has incorporated IPR issues under its ambit, it probably has not
had the desired effect because of various reasons. For the actual practical
success of such agreements in the light of technological neutrality, members
need to build a healthy agreement on how the evolution of technology would
impact both, the classification of services and the reading of services
commitments under the agreement or the binding document.
Written By Anshal Dhiman
, pursuing BA.LLB (Hons)