Influencing policy development across the international digital divide

Since 2014, Professor Kariyawasam has been leading research on the digital economy, researching the digital divide between those who have access to Information Communication Technologies (ICTs) and those who do not.

This work follows on from earlier research published by Kariyawasam: International Economics Law and the Digital Divide: A New Silk Road (Edward Elgar, 2008) and The WTO, Intellectual Property, E-Commerce and the Internet (Edward Elgar, 2009).

In 2007 Kariyawasam was awarded AHRC funding to research those with disabilities who access ICTs in the classroom and those who do not; in 2010, he was awarded the British Academy MC Fellowship to research market dominance, neutrality and privacy on the internet.

In 2015, Kariyawasam was awarded AHRC Newton Funding to research copyright in the digital domain in China. His empirical research on copyright in the digital economy, social media and digital divide issues in China has effected a change in awareness of Chinese copyright law (digital divide and open internet content). This resulted in a set of 14 recommendations for expanding the fair use provisions in China's Copyright Act sent to the Chinese National People's Congress (CNPC) in April 2018.

Over 2015-2018, Kariyawasam was appointed a member of the World Economic Forum/International Centre for Trade &Sustainable Development Digital Economy Expert Group where he reviewed the digital economy provisions in a range of bilateral and regional free trade agreements. This whole body of research also led to suggested developments to World Trade Organisation (WTO) law addressing the digital divide between developed and developing nations; defining in WTO law the dominance of major suppliers (open internet infrastructure).

Objectives of the Digital Divide research

1. To develop regulatory policy that helps address the international digital divide between developed and developing economies and the domestic divide between those who have access to ICTs and those who do not.
2. To address the hidden influence of marker power of tech giants who control multiple layers of the internet protocol stack linking control of content to control of infrastructure.
3. To create a better regulatory environment for fair use in copyright (rights and exceptions in copyright) that leads to greater innovation and restricts the chilling effect of rights owners in preventing non-commercial use of user generated content.

Projects

British Academy MC Fellowship: researching market competition, net neutrality and privacy in internet networks throughout the European Member States - interviewing a range of content providers, telecommunication operators and regulators in several EU Member States to better understand the differing domestic legislative environments for net neutrality, privacy and market power over the internet

E-15 Digital Economy Expert Group: As a member of the (WEF/ICTSD) E-15 Digital Economy Expert Group, Kariyawasam completed research on trade in the digital economy and digital divide in developed and developing nations reviewing the digital economy provisions in a range of bilateral and regional trade agreements. The key findings are that current WTO rules on defining dominance on telecommunication networks, specifically WTO's regulatory reference paper, need to be improved to take account of dominant internet content and infrastructure operators trading on the internet.

Research insights from both projects show the current operation of the digital economy is disrupted in significant ways. In particular that:

• Operators are discriminating against traffic and data from third party operators across their networks
• Operators are using conveniently accepted data management practices, such as traffic control, to redirect, slow down and discriminate against third part traffic
• Operators are using techniques such as deep packet inspection, for commercial surveillance  in targeting the usage of end users applications, protocols and content on the internet
• Operators are using their dominance of the different layers of the internet protocol stack from the network layer to the content layer (combining control of infrastructure and copyrighted content) to restrict competition on the internet
• The findings were presented at two conferences on the Digital Economy in New York (2015, 2016) and Geneva (2017), which included audiences from WTO trade delegations and numbering at least 150 delegates in total.

AHRC Newton Grant: In 2015, Kariyawasam was awarded an AHRC Newton grant to investigate exceptions and limitations (fair use) of open internet content and copyright in the digital domain for the Third Revision to China's copyright act. Research was completed in partnership with two prestigious Chinese Law Schools, Peking University and Xi’an Jiaotong University and led by Kariyawasam as project lead.

The project examined the current Chinese copyright law, completed comparative analyses with the domestic copyright regimes of nine leading trade partners of China, and evaluated the copyright terms of 30 Chinese bilateral and regional trade treaties.

Research also included a survey that reached out to more than 5000 stakeholders in China, including 200 corporate organisations, lawyers, academia, the judiciary, NGOs, and end-users. This is considered the largest survey of its kind on fair use of copyright in the digital domain in China.

Results show that:

• A high percentage of those surveyed (46%) wanted an expansion of fair use terms in China
• 50% of those surveyed wanted new mandatory terms for digital copyright exceptions
• 53% wanted the inclusion of a reverse engineering obligation in good faith
• 47% wanted the inclusion of a compulsory-take down counter-notice.

In April 2018, the research was finalised in a confidential study sent to the Chinese Government's highest legislative arm, the National People's Congress Legislative Affairs Working Committee. The study proposed a specific legal clause for each of the key findings of the survey to be incorporated as amendments to Sections 40-50 of the Third Revision. This includes, amongst others:

• IP management methods such as enforcing users to submit a request when accessing contents
• Introduction of a non-profit clause for copyrighted content used in educational material
• New provisions on the use of User Generated Content on social media
• Differentiation between the rights and obligations of internet content providers and the internet service providers
• a change on current Chinese copyright provisions for reverse engineering of software interfaces
• Provisions for a virtual copyright mark (if approved, this would be a novel, unique in the world tool).

More information on the China project is available as part of the Fair Use Project.