Law: Influencing policy development across the digital divide

Prof Rohan Kariyawasam

ARU research on the digital economy and digital divide will help transform digital copyright law in China and improve access to internet infrastructure and content worldwide.

Prof Kariyawasam and collaborators’ findings on stakeholders’ preferences for Intellectual Property (IP) reforms in China have informed amendments to the country’s Copyright Law.

Their work on the unfair behaviours of major Internet Service Providers (ISPs) worldwide and the need for improved regulation, meanwhile, has come to the attention of policy-makers at the World Trade Organisation (WTO).

Rohan Kariyawasam

Prof Rohan Kariyawasam

Rohan is Professor of Law at ARU and a qualified solicitor with experience in commercial law. His research focusses on the intersection of technology, IP, information law, and the humanities.

Find out more about Prof Rohan Kariyawasam Explore ARU researchers' original work via our open access repository, ARRO

Research summary

From 2015, Prof Kariyawasam partnered with Peking University and Xi-an Jiaotong University on an AHRC Newton grant funded project to investigate exceptions and limitations (fair use project) of open internet content and copyright in the digital domain for the Third Revision to China's Copyright Act.

The researchers examined existing Chinese copyright law, compared China’s copyright policies with those of nine of their leading trade partners, and evaluated the digital economy and copyright terms of 30 Chinese bilateral and regional trade treaties.

They also surveyed more than 5,000 stakeholders in China, including 200 corporate organisations, lawyers, academia, the judiciary, NGOs, and end-users – at the time, the largest survey of its kind on fair use of copyright in the digital domain in China.

They found that:

  • 46% of respondents wanted an expansion of fair use terms in China
  • 50% wanted new mandatory terms for digital copyright exceptions
  • 53% wanted a reverse engineering obligation in good faith to be introduced
  • 47% wanted a compulsory take-down counter-notice for ISPs to be introduced.

Prof Kariyawasam was also invited to become a member of the World Economic Forum’s (WEF) E-15 Digital Economy Expert Group. In this role, he researched trade in the digital economy and digital divide in developed and developing nations, including China.

He found that dominant ISPs have a monopoly on both content and infrastructure on the internet, yet current WTO rules on defining dominance on telecommunication infrastructure do not take this duality into account.

Furthermore, major suppliers of communication services (including internet) leverage their dominance of infrastructure into content, causing disruption to the digital economy and exacerbating the digital divide by:

  • Discriminating against traffic and data from third party operators across their networks
  • Using conventionally accepted data management practices, such as traffic control, to redirect, slow down (throttle) third party traffic
  • Using techniques, such as deep packet inspection, for commercial surveillance in targeting the usage of end user applications, protocols and content on the internet
  • Combining control of infrastructure and copyrighted content to restrict competition on the internet. This insight is highly novel and led Prof Kariyawasam to suggest a completely new layered approach to regulation.
A map of the world represented by illuminated digital connections in green and gold, with a focus on Africa

Summary of the impact

  • Changed the understanding and influence of key stakeholders in China and the World Trade Organisation (WTO) around digital copyright
  • Proposed recommendations for legislative change sent by the Intellectual Property Research Institute, Xi'an Jiaotong University (China) to the Chinese State Council
  • Proposed recommendations for legislative change considered by the Director of Intellectual Property (TRIPS, WTO) to the WTO’s Secretariat

Impact

Influence on Intellectual Property stakeholders in China

As a result of his findings in China, Prof Kariyawasam and collaborators proposed several amendments to Sections 40-50 of the draft Third Revision to China’s Copyright Act, including new or altered provisions for:

  • IP management methods, such as requiring users to submit a request when accessing content
  • A non-profit clause for copyrighted content used in educational material
  • The use of user generated content on social media
  • Take-down and rebuttal notices for ISPs
  • Reverse engineering of software interfaces
  • A virtual copyright mark (if approved, this would be a novel, unique-in-the-world tool).

At a legal drafting workshop in Beijing in April 2017, Prof Kariyawasam invited 30 significant copyright and end-user stakeholders in China to comment on these, and other legal recommendations on copyright reform in the digital economy, social media and digital divide issues.

This event raised these stakeholders’ awareness of the role copyright can have in enabling the further promotion of innovation and creativity, while also allowing copyright owners to gain returns on their work.

The stakeholders’ feedback on the proposed amendments informed Prof Kariyawasam’s recommendations to the Shaanxi Provincial People’s Congress on fair use reform, published in April 2018.

About more about influence on intellectual property stakeholders in china.

Influence on the Third Revision of China’s Copyright Law

Prof Kariyawasam’s co-investigator, Prof Ma Zhiguo, Director of the Intellectual Property Research Institute at Xi’an Jiaotong University, was invited by the Shaanxi Provincial People’s Congress (the federal legislative body in the province) to submit the results of the research.

In April 2018, Prof Kariyawasam and collaborators presented their research and recommendations to the Shaanxi Provincial People’s Congress (Shaanxi PPC).

They welcomed the proposals, which then went on to be considered by the Legislative Affairs Committee of the National People’s Congress, the highest legislative arm of the Chinese Government.

Proposal of a new definition of internet major suppliers for the WTO

Prof Kariyawasam used his research findings in China and for the World Economic Forum E-15 Digital Economy Expert Group to produce two ‘think-pieces’, which he presented to WTO decision-makers in 2015, 2016, and 2016.

These made recommendations on how the WTO could reform how they regulate digital services, including the proposal of a new definition of a dominant telecommunications provider (a major supplier).

These were well-received, with the WTO’s Director of Intellectual Property and Competition Divisions inviting Prof Kariyawasam to publish a book chapter on his research and recommendations.

The Managing Director of the International Centre for Trade and Sustainable Development stated that: “Kariyawasam's ideas for regulatory change could have significant impact on policy on the regulation of dominant internet undertakings and should be widely disseminated.”

United Nations Sustainable Development Goals

We have mapped our REF 2021 impact case studies against the United Nations' Sustainable Development Goals (SDGs).

The 17 SDGs, adopted by all UN Member States in 2015, are an urgent call for action. They recognise that ending poverty and other deprivations must go hand-in-hand with strategies that improve health and education, reduce inequality, and spur economic growth – all while tackling climate change and working to preserve our oceans and forests.

This case study is mapped to SDG 9: Build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation, target 9.c.

Addenda

Due to the confidential nature of Chinese legislative decision making and the way in which the Chinese State Council and National People’s Congress works, it is impossible to say whether Prof Kariyawasam and collaborators’ recommendations directly led to the amendments that were made.

However, the Intellectual Property Research Institute at Xi’an Jiaotong University says that it is rare for academic project recommendations to be welcomed at Shaanxi PPC level. The Shaanxi PPC sent the fair use project legislative recommendations directly to the National People’s Congress.

Since this REF case study was submitted, Prof Kariyawasam and collaborators’ recommendation to include a reverse engineering provision was introduced in the main Chinese Copyright Act (2020 Amendment, s.50(5)) that came into force on 1 June 2021.

Their recommendation that Chinese law be amended to include a take-down notice and rebuttal provision for Internet Service Providers appeared in secondary legislation entitled Reply of the Supreme People’s Court on Several Issues Concerning Application of law in Disputes over Infringement on Intellectual Property Rights on Network. This came into force on 14 September 2020.

See also

Read the full REF 2021 impact case study for UoA 18: Influencing policy development across the digital divide (PDF)

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