Research Volume Three Volume Research Mapping the Digital Frontiers of Trade and Intellectual Property Mapping the DigitalTrade Frontiers of Research Volume Three Global Commission on Internet Governance Mapping the Digital Frontiers of Trade and Intellectual Property 67 Erb Street West 10 St James’s Square Waterloo, Ontario N2L 6C2, Canada London, England SW1Y 4LE tel +1 519 885 2444 fax +1 519 885 5450 United Kingdom www.cigionline.org tel +44 (0)20 7957 5700 fax +44 (0)20 7957 5710 www.chathamhouse.org Research Volume Three Global Commission on Internet Governance Mapping the Digital Frontiers of Trade and Intellectual Property Published by the Centre for International Governance Innovation and the Royal Institute of International Affairs The copyright in respect of each chapter is noted at the beginning of each chapter. The opinions expressed in this publication are those of the authors and do not necessarily reect the views of the Centre for International Governance Innovation or its Board of Directors. This work was carried out with the aid of a grant from the International Development Research Centre (IDRC), Ottawa, Canada. The views expressed herein do not necessarily represent those of IDRC or its Board of Governors. This work is licensed under a Creative Commons Attribution — Non-commercial — No Derivatives License. To view this licence, visit (www.creativecommons.org/licenses/ by-nc-nd/3.0/). For re-use or distribution, please include this copyright notice. Centre for International Governance Innovation, CIGI and the CIGI globe are registered trademarks. 67 Erb Street West 10 St James’s Square Waterloo, Ontario N2L 6C2 London, England SW1Y 4LE Canada United Kingdom tel +1 519 885 2444 fax +1 519 885 5450 tel +44 (0)20 7957 5700 fax +44 (0)20 7957 5710 www.cigionline.org www.chathamhouse.org TABLE OF CONTENTS About the Global Commission on Internet Governance . iv Preface . v Carl Bildt Introduction: The Complex Geopolitics of Digital Property and Trade . 1 Laura DeNardis Chapter One: Internet Intermediaries as Platforms for Expression and Innovation . 5 Anupam Chander Chapter Two: Patents and Internet Standards . 17 Jorge L. Contreras Chapter Three: Standards, Patents and National Competitiveness . 35 Michael Murphree and Dan Breznitz Chapter Four: Looking Back on the First Round of New gTLD Applications: Implications for the Future of Domain Name Regulation . 47 Jacqueline D. Lipton Chapter Five: The Digital Trade Imbalance and Its Implications for Internet Governance. 55 Susan Ariel Aaronson Chapter Six: Solving the International Internet Policy Coordination Problem . 87 Nick Ashton-Hart Chapter Seven: Governance of International Trade and the Internet: Existing and Evolving Regulatory Systems . 103 Harsha Vardhana Singh, Ahmed Abdel-Latif and L. Lee Tuthill Chapter Eight: Cyber Security and Cyber Resilience in East Africa . 117 Iginio Gagliardone and Nanjira Sambuli About CIGI. 126 About Chatham House . 126 CIGI Masthead . 126 ABOUT THE GLOBAL COMMISSION ON INTERNET GOVERNANCE The Global Commission on Internet Governance was established in January 2014 to articulate and advance a strategic vision for the future of Internet governance. The two-year project conducted and supported independent research on Internet-related dimensions of global public policy, culminating in an ofcial commission report — One Internet, published in June 2016 — that articulated concrete policy recommendations for the future of Internet governance. These recommendations address concerns about the stability, interoperability, security and resilience of the Internet ecosystem. Launched by two independent global think tanks, the Centre for International Governance Innovation (CIGI) and Chatham House, the Global Commission on Internet Governance will help educate the wider public on the most effective ways to promote Internet access, while simultaneously championing the principles of freedom of expression and the free ow of ideas over the Internet. The Global Commission on Internet Governance focuses on four key themes: • enhancing governance legitimacy — including regulatory approaches and standards; • stimulating economic innovation and growth — including critical Internet resources, infrastructure and competition policy; • ensuring human rights online — including establishing the principle of technological neutrality for human rights, privacy and free expression; and • avoiding systemic risk — including establishing norms regarding state conduct, cybercrime cooperation and non- proliferation, condence-building measures and disarmament issues. The goal of the Global Commission on Internet Governance is two-fold. First, it will encourage globally inclusive public discussions on the future of Internet governance. Second, through its comprehensive policy-oriented report, and the subsequent promotion of this nal report, the Global Commission on Internet Governance will communicate its ndings with senior stakeholders at key Internet governance events. www.ourinternet.org IV • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION • CHATHAM HOUSE PREFACE When I and my colleagues at the Centre for International Governance Innovation and Chatham House envisioned and launched the Global Commission on Internet Governance (GCIG) in 2014, we were determined to approach the work ahead strictly on the strength of evidence-based research. To make this possible, we commissioned nearly 50 research papers, which are now published online. We believe that this body of work represents the largest set of research materials on Internet governance to be currently available from any one source. We also believe that these materials, while they were essential to the GCIG’s discussions over these past months, will also be invaluable to policy development for many years to come. The GCIG was fortunate to have Professor Laura DeNardis as its director of research, who, along with Eric Jardine and Samantha Bradshaw at CIGI, collaborated on identifying and commissioning authors, arranging for peer review and guiding the papers through the publication process. Questions about the governance of the Internet will be with us long into the future. The papers now collected in these volumes aim to be forward looking and to have continuing relevance as the issues they examine evolve. Nothing would please me and my fellow Commissioners more than to receive comments and suggestions from other experts in the eld whose own research has been stimulated by these volumes. The chapters you are about to read were written for non-expert netizens as well as for subject experts. To all of you, the message I bring from all of us involved with the GCIG is simple — be engaged. If we fail to engage with these key governance questions, we risk a future for our Internet that is disturbingly distant from the one we want. Carl Bildt Chair, GCIG November 2016 CARL BILDT • V INTRODUCTION: THE COMPLEX GEOPOLITICS OF DIGITAL PROPERTY AND TRADE INTRODUCTION: THE COMPLEX GEOPOLITICS OF DIGITAL PROPERTY AND TRADE Laura DeNardis Copyright © 2017 by Laura DeNardis LAURA DENARDIS • 1 RESEARCH VOLUME THREE: MAPPING THE DIGITAL FRONTIERS OF TRADE AND INTELLECTUAL PROPERTY INTRODUCTION their technological systems, ultimately warning that the threat of liability incentivizes companies to censor THE COMPLEX GEOPOLITICS OF DIGITAL anything potentially controversial. PROPERTY AND TRADE The intersections between the Internet and IP rights are many. The Internet makes it easier to infringe IP rights. It One of the most powerful and consequential intersections is also used to mediate and enforce IP rights. Completely between the multi-trillion-dollar digital economy distinct, and more hidden from public view, there and Internet governance revolves around intellectual are also IP rights embedded within the technological property (IP). For example, the digitization of major systems underlying the Internet, such as trademarks industries — music, movies, games, journalism — has in domain names, patents embedded in standards and created unprecedented IP challenges. It is technologically algorithms protected as trade secrets. simple, and cheap, to copy and distribute products that used to necessitate the purchase of a physical medium. Exemplifying infrastructure-embedded IP rights are the The Internet is also used to sell counterfeit products from patents often underlying the technical standards that pharmaceutical goods to luxury handbags, creating new product developers use as blueprints to ensure that challenges for patent and trademark holders. In turn, the their products are compatible with other technologies. infrastructures and institutions of the Internet are being Without these technology standards, there would be no called upon to block access to pirated and counterfeit interoperability between different companies’ products, goods. never mind cross-border interoperability and trade. These technical standards are protected by complex In the digital economy, law enforcement functions collections of patents that, while designed to incentivize once carried out by the state have shifted to the private innovation, impose restrictions or licensing fees that sector. At the centre of the digital economy are the determine who is able to compete in a digital era often private companies that serve as the conduits and exaggeratedly described as a level playing eld for content intermediaries over which information ows. competition. Search engine companies sometimes factor copyright infringement history into algorithms, demoting