are techlaw principles in the ascendancy?

Are techlaw principles in the

ascendancy?Graham Smith

Bird & Bird LLP

SLS Cyberlaw Section

Edinburgh

5 September 2013

Introducing techlaw principles

SLS Cyberlaw Section, Edinburgh Sept 2013


Technology neutrality

© Bird & Bird LLP 2013




Technology neutrality - two main meanings● Technology agnostic v technology specific

• Form – optimum level of abstraction of legislative drafting

• Benefits - lack of bias- future proofing by not impeding new technologies

● Functional equivalence • Comparable effect with old tech regime

- behaviour


Is tech neutrality universally applicable?

NO© Bird & Bird LLP 2013


Applying tech neutrality

Four scenarios:Safe to DeployUse with CautionNot ApplicableDanger! Do not Use



Safe to Deploy

Regulatory liberalisation

Updating status requirements

Themes: - Remove impediments created by previous technology-specific legislation - Liberalisation and facilitation- Future proof by moving from technology specific to technology agnostic- Functional equivalence requires proper understanding of prior regime



Use with Caution

Extending/applying legacy prohibitions

Extending/applying legacy civil liability

Themes: - Unintended consequences of extending/applying liability in new situations- How to apply principle may not be not obvious- May be no direct comparables- Technology-agnostic and functional equivalence may give different answers



Not applicable

Legacy regime is:Tech/medium-specificRestrictive/prohibitiveExceptional

Themes: - Legacy regime is one of several potential comparables- Why not the existing general model?



Danger! Do not Use

Official powers

Prejudicial processes

Themes: - Interference with fundamental rights - Limits and precision rather than generality and future-proofing


Techlaw principles and copyright


Copyright – Use with Caution

ESA v SOCAN

UsedSoft

Meltwater



ESA v SOCAN (Supreme Court of Canada) Copyright: does communication to public right apply to video game downloads? (No)



Media neutrality

5 – 4 split

Majority and minority both invoked tech law principles


ESA v SOCAN (Supreme Court of Canada)


Media neutrality

Reproduction right applies to copies made through downloads, notwithstanding they are digital copies.

Communication right applies to digital communications, notwithstanding they may differ from

traditional broadcasting technologies.





"the principle of technological neutrality … requires that the Act apply equally notwithstanding the technological

diversity of different forms of media."

"… there is no practical difference between buying a durable copy… in a store, receiving a copy in the mail, or

downloading an identical copy using the Internet."

"The traditional balance between authors and users should be preserved in the digital environment."


Functional equivalence



"the principle of technological neutrality … requires that the Act apply equally notwithstanding the technological

diversity of different forms of media."

"… there is no practical difference between buying a durable copy… in a store, receiving a copy in the mail, or

downloading an identical copy using the Internet."

"The traditional balance between authors and users should be preserved in the digital environment."


UsedSoft (CJEU)Copyright: did resale of downloaded computer programs infringe? (No)


Functional equivalence

"The on-line transmission method is the functional equivalent of the supply of a material medium. Interpreting … in the light of the principal of

equal treatment… ."


Meltwater (UKSC)Copyright: do user's browser cache copies infringe? (No – subject to CJEU reference)


= Functional equivalence

"It has never been an infringement, in either English or EU law, for a person merely to view or

read an infringing article in physical form."


Are techlaw principles in the ascendancy?

Yesresurgence of functional

equivalence



Are techlaw principles in the ascendancy?

Butall things to all people

easy to ignore (e.g. TV Catchup, CJEU)

potential to misapplydemonising the internet


Graham Smith

@cyberleagle

[email protected]

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