The Rule of Law and intellectual property

The strong enforcement of intellectual property rights has been one of the most discussed topics and Internet sites and blogs (including this one) have dedicated much analysis on the latest twists concerning domain name takedowns, draconian copyright measures and, in general, the place intellectual property occupies within different Internet Governance fora. In the context of these discussions, I have started lately to wonder how strong enforcement of intellectual property rights can be justified in light of the commitments made by the liberal state to promote Internet freedom; because, at least from the outset and in light of recent intellectual property legislation around the world, these actions appear highly incompatible. (Only in the US, for instance, we have been exposed to three different legislative proposals – the Combating Online Infringement and Counterfeits Act (COICA), the PROTECT IP Act and the E-PARASITE Act – all of which have made the relationship between intellectual property and free speech harder than ever before). Considering that the common feature of all these proposals is to put in place strong enforcement mechanisms for the protection of intellectual property and given that this idea is slowly spreading (perhaps not as vociferously) in other parts of the world, how will Internet freedom and the principles associated with it (free speech, freedom of expression, etc.) also be sustained?

I was hoping that the recent letter sent by US Secretary of State, Hillary Clinton, could shed some light on what appears to be an issue regarding two highly incompatible and irreconcilable concepts. According to Secretary Clinton, “there is no contradiction between intellectual property rights protection and enforcement and ensuring freedom of speech on the Internet”. Secretary Clinton is right-intellectual property and freedom of expression walk hand in hand – at least in theory. (I, also, don’t consider intellectual property and free speech incompatible or irreconcilable; it is rather the direction that intellectual property is taking that I see as making the relationship between intellectual property rights and free speech antagonistic and inconsistent). But, the letter does not do this job. Instead, Secretary Clinton re-affirms the US Government’s earlier commitment to protect both intellectual property rights and Internet freedom, without going, however, into much detail as to how this can be achieved.

There is, however, reference to the rule of law and this is something that I find particularly a very important point. According to the letter: “The rule of law is essential to both Internet freedom and protection of intellectual property rights, which are both firmly embedded in US law and policy”. I have always advocated that the rule of law should operate as a reference point for the policies and laws we seek to create and relate to the Internet. The rule of law can provide the justifications, can legitimize processes and can, in general, create balanced frameworks of principles and rules. But one thing we need to bear in mind is that the rule of law is a metaphysical ideal that is in constant transition and, to this end, should always be evaluated within a specific context.

The question, therefore, is which rule of law is Secretary Clinton referring to? Is she referring to the traditional notions of intellectual property law, where creativity and innovation are balanced against free speech and fair use? Or, is she referring to the rule of law that is based on the recent attempts by the intellectual property community to create law according to their own needs? So, in reality it is not whether the rule of law is to be upheld; the question is what this rule of law should look like and who should be responsible for transforming it from an abstract notion to a solid and tangible article.

It is an undisputed fact that today's intellectual property laws have been subjected to intolerable levels of lobbying, so much that we lost track of what we are seeking to protect. Intellectual property is an all-inclusive framework of creators, innovators and entrepreneurs at all levels; but, for instance, the current approach does not support any of these strands of individuals at the ‘ground zero’ level – the level that consists of those who are not yet part of the Hollywood clan - but need the Internet to imitate, ‘borrow’ and distribute ideas, advocate and criticise.

To this end, although I welcome references to the rule of law, at the same I feel quite disconcerted. I feel uneasy because we can still refer to the rule of law even if that law is based on arbitrariness, intimidation, corruption and bias or is the by-product of lobbying and intimidation or it justifies the creation of an environment where balance and transparency are not essential components. So, I suggest we are cautious when we refer to the rule of law as it can become meaningless through ideological abuse and over-use. As Professor Judith Shklar has adequately phrased it: “[The rule of law] may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling class chatter”.