The Internet, Facebook, Smart Phones and Intellectual Property Rights: A Happy Combination?

In S Frankel and D Gervais (eds), “The Internet and Intellectual Property: The Nexus with Human and Economic Development”, Victoria University Press, 2016 Forthcoming

Posted: 18 Aug 2016

See all articles by Estelle Derclaye

Estelle Derclaye

University of Nottingham, School of law

Date Written: February 17, 2015

Abstract

2014 was the 25th birthday of the World Wide Web (WWW) and as of 30 June 2014, 3,035,749,340 (ie around 3 billion and 35 million) people were connected to the Internet so a bit more than half the population of the planet. There were around 1.70 billion active smart phones in the world at the end of 2014. Users check their devices on average every 6.5 min or 150 times per day. There is around the same amount of monthly active Facebook users in the world as there are smart phones (1.39 billion as of the third quarter of 2014). There is therefore no denying the growing pervasiveness and thus influence that the Internet generally (static or mobile) and all its applications especially Facebook, in short Web 2.0 and beyond, have on the world’s population. Research also shows that when people are more socially involved, “they are happier and healthier, both physically and mentally.” So it would be logical to think that the connectedness that the Web 2.0 enables makes people happier. However, as we shall see in this paper, the story is more complex. The person generally considered the founder of the WWW, Tim Berners-Lee, did not patent his ‘invention’. He wanted it to be free for all to use. By contrast, smart phones makers and providers of many applications, such as Facebook, heavily rely on exclusive IP rights (IPR). For instance, in 2012, Facebook owned around 812 patents, namely 20 of its own, 750 purchased from IBM, and the remaining others acquired from other tech giants. So even if the WWW as such is IPR-free, many of its applications including mobile apps (software) are greatly IPR-dependent. Smart phones incorporate hundreds if not thousands of patent, designs, copyright and other satellite IPR such as rights on topographies of semi-conductor chips, database rights and trademarks. IPR encourage innovation by giving exclusive rights to inventors. This is called the incentive theory of intellectual property. Since patents, designs and copyright eventually expire, it may be said that the IP system encourages inventors and creators, or at least some of them, to keep innovating including by making minor incremental innovations and updates. However, this is not the same as saying that current IP laws and policies target well-being; only that IPRs incentivise new and original products, which are assumed to foster economic growth.

In most civil law countries, IP laws aim to protect the natural rights of inventors and creators (their livelihood, name and reputation). The focus here is, therefore, on the well-being of creators and inventors and not on a more general view of well-being, that is also that of users. From the incentive theory flows the so-called technological neutrality of IP law. This principle comes from the liberalist ideology which underlies modern, Western and Western-influenced, IP laws, but is an ideology which does not go without saying. There is a limit to technology neutrality: inventions, designs and works which are immoral or against public policy often cannot be protected by IPR. However, this subject-matter which is excluded from IP laws is generally rather strictly interpreted. Inventions and creations related to information and communication technologies (ICTs) such as those applying to smart phones and Facebook typically would not fall within that exclusion. Most ICTs, unlike new foodstuffs, chemicals and pharmaceuticals, are not otherwise vetted by public authorities.

When scrutiny does happen, it is often after the patent has been granted. As some ICTs such as smart phones, tablets, social networking, apps, and online video games can have negative effects on well-being -- and in some cases quite severe ones, -- it would seem logical to apply a system similar to the approval of new foodstuffs to them. Why is what we ingest or inhale carefully trialed before commercialisation but not ‘what our mind absorbs’? Moreover, based on empirical research on technologies’ effects on well-being, should we have a well-being enhancing or at least not well-being reducing condition in our IP laws? To find out, we begin by examining what the literature in other fields -- chiefly in psychology -- has found in relation to the effects of ICTs on well-being. Other related fields can then add to the discussion , especially philosophy. This article embarks in the first of these two cross-disciplinary enquiries to see what lessons can be drawn for the IP framework in general.

Keywords: intellectual property, internet, smart phones, facebook, social media, well-being

Suggested Citation

Derclaye, Estelle, The Internet, Facebook, Smart Phones and Intellectual Property Rights: A Happy Combination? (February 17, 2015). In S Frankel and D Gervais (eds), “The Internet and Intellectual Property: The Nexus with Human and Economic Development”, Victoria University Press, 2016 Forthcoming, Available at SSRN: https://ssrn.com/abstract=2822053

Estelle Derclaye (Contact Author)

University of Nottingham, School of law ( email )

Nottingham NG7 2RD
United Kingdom

HOME PAGE: http://www.nottingham.ac.uk/law2/staff/estelle.derclaye

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