This document discusses the principles of technology neutrality in law and its application to copyright. It defines technology neutrality as being agnostic to specific technologies and ensuring comparable effects between new and old media. While technology neutrality aims to future-proof laws, the document notes it is not always appropriate and may have unintended consequences if extending legacy prohibitions. It analyzes several copyright cases where courts invoked technology neutrality, including finding digital downloads comparable to physical copies, and rules browser cache copies non-infringing if viewed. However, the document also notes technology neutrality is not a cure-all and may be ignored or misapplied at times.

1. Are techlaw principles in
the ascendancy?
Graham Smith
Bird & Bird LLP
SLS Cyberlaw Section
Edinburgh
5 September 2013

2. Introducing techlaw principles

3. Introducing techlaw principles
Technology neutrality
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4. SLS Cyberlaw Section, Edinburgh Sept 2013
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Introducing techlaw principles
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

5. Is tech neutrality universally applicable?
NO
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6. Applying tech neutrality
Four scenarios:
Safe to Deploy
Use with Caution
Not Applicable
Danger! Do not Use
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7. 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
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8. 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
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9. Not applicable
Legacy regime is:
Tech/medium-specific
Restrictive/prohibitive
Exceptional
Themes:
- Legacy regime is one of several potential comparables
- Why not the existing general model?
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10. Danger! Do not Use
Official powers
Prejudicial processes
Themes:
- Interference with fundamental rights
- Limits and precision rather than generality and future-proofing
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11. Techlaw principles and copyright

12. Copyright – Use with Caution
ESA v SOCAN
UsedSoft
Meltwater
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13. ESA v SOCAN (Supreme Court of Canada)
Copyright: does communication to public right
apply to video game downloads? (No)
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Technology neutrality Media neutrality
5 – 4 split
Majority and minority both invoked tech law principles

14. ESA v SOCAN (Supreme Court of Canada)
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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.

15. Technology neutrality
ESA v SOCAN (Supreme Court of Canada)
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"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."

16. Functional equivalence
ESA v SOCAN (Supreme Court of Canada)
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"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."

17. UsedSoft (CJEU)
Copyright: did resale of downloaded computer
programs infringe? (No)
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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… ."

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

19. Are techlaw principles in the ascendancy?
Yesresurgence of functional equivalence
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20. Are techlaw principles in the ascendancy?
Butall things to all people
easy to ignore (e.g. TV Catchup, CJEU)
potential to misapply
demonising the internet
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21. Graham Smith
@cyberleagle
graham.smith@twobirds.com
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