This article is written by Anshal Dhiman, pursuing BA.LLB (Hons.). The article talks about the TRIPs agreement of 1995 and the concepts of technological neutrality in e-commerce under its ambit.

Introduction

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 copyrights. 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

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.

Peroration

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.

References

• https://link.springer.com/article/10.1057/s42214-020-00079-1#Sec5
• http://wtocentre.iift.ac.in/workingpaper/WorkingPaper51.pdf
• https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=233488,233353,232275,228997,52817,1544,46383,3141,8841,2252&CurrentCatalogueIdIndex=7&FullTextHash=&HasEnglishRecord=True&HasFrenchRecord=True&HasSpanishRecord=True
• http://www.cuts-geneva.org/pdf/STUDY%20-%20E-Commerce%20Towards%20MC11.pdf\
• https://www.researchgate.net/publication/314698501_Revisiting_the_Principle_of_Technological_Neutrality_in_Patent_Protection_in_the_Age_of_3D_Printing_Technology_and_Cloud_Computing
• https://tii.unido.org/category/legal-and-regulatory-framework-wto
• https://www.cambridge.org/core/journals/world-trade-review/article/abs/governing-digital-trade/6FFC3F6D33D0887663F72FA0101FCBDC
• https://uk.practicallaw.thomsonreuters.com/Browse/Home/PracticalLaw?transitionType=Default&contextData=(sc.Default)
• https://www.europarl.europa.eu/RegData/etudes/BRIE/2020/603517/EXPO_BRI(2020)603517_EN.pdf

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