THE 2 IPs: Internet Protocol and Intellectual Property –

Lets talk Mobile , Internet and Connected Devices as we explore borderless chats. And yes: Who owns your chats and who gets regulated? And: Advertisers – are we thinking of them in the regulatory landscape.

No more pigeons as carriers, but mobile messaging apps like Facebook’s and their instant messaging services and others like Whats App, WeChat, Snapchat, Viber, Line, Kakao Talk and Tencent are on the radar. They have fast outpaced mobile carriers SMS.

As we chat, we connect and we buy…. that is what advertisers want. More so, it is what companies want – both virtual and real time companies. Entrepreneurial fervour is driving more and more advancement and technology is aiding this spiral. Technology is also changing innovation in itself. Technology is allowing more and more communication and interactivity and inventions on scales small and large. Technology combined with creativity is driving innovation as business and the operations of the world are being digitised.

Mobile messaging carriers pay hefty licence fees but internet messaging applications are largely unregulated – Is this the new war – who pays and who is regulated? But should that be the war – is the question rather: with connectivity , access and communication are enhanced and the issue is one for greater connectivity and Internet access. The internet is a powerful force – an as the UN Broadband Commission spotlight: The Internet is Evolving from Connected Things to Connected Everything.

It is access and connectivity that need to be on the radar not asymmetric regulation, as mobile makes money and dual regulation discussions aid not abet minimal mobile fee discussions.

Mobile and Internet based messenger apps those that access mobile with internet and those that do not – are a reality in as much as Facebook’s is offering an alternative attempt to equalise digital access. So, Internet Protocol – IP networks are now connecting billions of physical devices, while this accelerating volume of data is driven by four major trends:

IP is fast becoming the common

language for most data

communication, especially

proprietary industrial networks.

Billions more people, things,

places, processes and devices

will come online over the next five


Existing physically stored

information is being digitized

in order to record and share

previously analogue material. For

example, the digital share of the

world’s stored information has

increased from 25% to over 98%

over the last decade38.

The introduction of Internet

Protocol version 6 (IPv6) now

removes the technical limit on the

number of devices connected to

the Internet, allowing for trillions of

trillions (i.e. 1038) of devices. – UN BROADBAND COMMISSION 2014

Mobile Internet commerce has got advertisers in a digital frenzy vying for virtual mobile users as much as getting them to part with their monies. According the recent UN Broadband Commission Report 2014 Report , the ITU predicts that the number of networked devices could reach 25 billion by 2020.

Now that is a lot of networked devices. Much more than simply mobile connectivity and IP ( Internet Protocol) trillion connectivity has the potential to transform to trillions in capital and ROI as connectivity of everything. That is the digital enabler.

The debate is on: Mobile operators are regulated. Internet service based messaging whether on mobile or otherwise are not. That is the digital revolution making inroads into what was traditionally mobile revenue. Internet service based messaging has revolutionised affordable communications. Competition is good So, lets leave this unregulated. It is a communications enabler especially in countries where mobile and telephony communications are expensive and digital access uneven. Mobile needs to up its game on affordable communications. More instant messaging applications offer a sales incentive for smart mobile purchases.

Advertisers in terms of specific communications regulatory fees are not regulated. They use infrastructure bandwidth and vicariously user’s data bandwidth . Yes they pay – but to whom and that is what should be borne in mind. Should they be? They negotiate commercial agreements and ad funded revenue model to maximise their revenue. So, why not regulate them. Yes, we have regulations and in country standards. That is not the point, the global advertisers leverage revenue as much the chats are borderless. So, lets bring them in the financial regulatory model too.

Virtual mobile messaging systems in the digital world are on the path to changing intellectual property rules. But what are the new rules in play? Are we asking the right question and to whom?

So, who owns your chats? You do, its your IP – Intellectual Property ( product of the intellect – your words, your phrases, your rhymes) but always check the Terms of Service and Privacy Policy including for escape clauses. Be mindful of jurisdiction clauses as litigation in a foreign country is expensive and sever location founds jurisdiction.

And IP – Internet Protocol and its processing power is enabling those chats to be as connected as they are borderless.

Happy chatting.

Ayesha Dawood

Published in Business Day Business Law and Tax Review February 2016

Why SA can’t get movies online? SA lacks the will to transform itself into a digital beacon

In many parts of the world the Internet is the primary provider of information, news and entertainment. All the dramas, sitcoms and television series are among the daily offering. Netflix, a popular US-based, content service has millions of subscribers many outside the US. Sadly, Netflix won’t be avaibale in South Africa.

The reason? Access to the Internet is just too expensive and download speeds are far too slow. Therefore, Netflix does not see a viable market in the country. For years the government has been drafting and altering the policy documents on broadband but the price of Internet access continues to remain outside the affordability of most South Africans.

Video streaming is the holy grail of the Internet and for the majority it will probably stay that way.

The International Telecommunications Unions (“ITU”), an agency of the United Nations, continues to provide world leadership not only on technology but, importantly, on “fostering equitable access to the modern technologies that can transform people’s lives and help break the vicious cycle of poverty and isolation”. The ITU says its development goals prioritise equitable access, not just across countries, but within communities, with special focus on gender issues, youth access, the disabled, indigenous communities and very remote populations. There is also a special direct aid programme targeting the 49 UN-designated Least Developed Countries (LDCs).

UN Secretary-General Ban Ki-Moon says on the ITU site:Through e-learning, e-health, e-government, climate monitoring and more, today’s and tomorrow’s technologies will help bring the Millennium Development Goals (“MDGS”) within reach. The power of fixed and mobile broadband will further improve our ability to extend basic services to communities – even those in the remotest places – in ways that where inconceivable when the MDGs were first articulated more than a decade ago.”
According to the ITU the number of mobile cellular subscriptions worldwide is now well over five billion and more than two billion people world-wide have access to the Internet. In terms of ICT access it’s been a miraculous new millennium for most of the world’s poorest nations, and especially for the LDCs, with the total number of mobile cellular subscriptions in the LDCs as a whole rising more than 150-fold since the year 2000 – from under 2 million to 280 million by the end of 2010.

But the ITU is concerned about the many problems that still remain. The buoyant regional growth averages hide wide disparities, it says, and while some LDCs are booming – at end 2010, Gambia and Mauritania, for example, boasted mobile penetrations of 80% or over, far higher than the European average of 50% in the year 2000 – Eritrea still has an effective teledensity of less than 4%. In the Pacific, Samoa has a mobile penetration of 91%; Kiribati, its near neighbour, has 10%. And Myanmar, in contrast to many markets in Asia, has just 12 mobile subscriptions per 1,000 people.

This is in stark contrast with the industrialized world where Europe now has many more mobile subscriptions than inhabitants, and where, globally, 100 countries now boast mobile cellular penetration of over 100%. But phone service is just one part of the puzzle in a globalized economy that increasingly relies on online information exchange. At the turn of the millennium, the 49 LDCs shared just 178,000 Internet subscribers. While that number is rising, penetration remains low, at just 4.6% in 2010.

Turning to broadband, the ITU says, penetration in parts of the developing world remains largely confined to foreign-owned businesses and the tourism sector. In 32 of the world’s developing nations, the cost of a monthly broadband subscription is over 50% of per capita monthly gross national income – compared with under 5% of per capita GNI in the top 46 countries in the ITU’s ICT Price Basket.

According to the estimates (and there are several) the rate of Internet penetration in South Africa stands at about 48.90. Now look at South Korea: more than 90% of the people are connected to a low-cost high speed network.

South Africa is a wealthy country, although plagued by a legacy of structural economic problems. Its infrastruture, in broadcasting and telecommunications, is outstanding. In broadcasting more than 90% of the population have access to terrestrial television.


Unlike broadcasting the broadband infrastructure is expensive and its benefits are therefore limited, making the online video market unsustainable. As government commitment to an affordable broadband network does not appear to be a matter of priority, the country’s full participation in the digital world remains elusive. In South Korea, for example, progressive digital strategies as well as an incredible determination to roll out an affordable broadband network has made the country one of the world’s leaders in digital innovation and development.

South Africa ranks at least 5th in Africa and 92nd worldwide for individual Internet usage, according to a 2013 State of Broadband Report released by the UN Broadband Commission. There is no further information to date to indicate that South Africa has moved up a rank. In terms of Internet speed, South Africa ranks 6th amongst Africa’s Top Ten countries, with Ghana taking the lead followed by Zimbabwe, Kenya, Libya, Madagascar, South Africa, Morocco, Nigeria, Rwanda and then Mozambique. (IT News Africa, 2012.) By 2012 estimates – Zimbabwe was ahead of South Africa and that should worry us.

South Africa seems to lack that will to transform itself into a continental digital beacon. This is not a hard problem to solve. It needs a will and commitment to building an infrastructure, although some of the infrastructure is in place.

The first problem is access to the Internet in the cities and in the rural areas. The second problem is the cost of the access to high speed connectivity.

Government is expecting to pay billions of rands for set top boxes that will give South Africans access to the new digital television signals which we hope to get next year. Yet, the government does nothing to contribute to low-cost, high-speed access to the Internet.

The Department of Communications says that a telecoms policy review is underway and a White paper is expected some time in October this year. This White Paper is probably a good idea if only to add focus to the country’s embarrassing under-achievements in comparision with the smaller economies in Africa.

As the current broadband policy has achieved nothing of value for millions of people, we are left with the privately-owned operators whose only aim is to profit from Internet access and usage.

In the interim, Netflix is not ours to access, and may not be in the near future. Now that is a pity, as well as bad business metrics for the economy.


For abbreviated online version see 19 September 2014, Business Day Live,



Digital Rights Treaty

Why World Governments, Business and Citizens need a New Optional Protocol for Digital Rights

Adapting to the demands of the Digital World

The digitisation of technology is fast becoming the basis that underpins digital rights, digital privacy, digital communications and their intersection with law, social media, broadband and broadcast platforms. This has implications for business, government, education, health, transport, aviation, science, customs and trade, finance, infrastructure, development and philanthropy. Technology allows for the mapping of hitherto unknown territories as well as sustained forays into outer-space. The world as we know it has changed. The opening up of what used to be ‘deep space’ necessitates a strong digital computational framework.

In light of technology’s pervasive outreach and its pioneering role in invention and development which has both utilitarian and social implications, international law must be amended to align with these new realities. Ideally, this would be embodied in an Optional Protocol to both the United Nations International Covenant on Civil and Political Rights (ICCPR) and the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR), which are international treaties that UN member states accede to. By April 2014, the ICCPR and ICESCR had been acceded to or ratified by 168 and 162 countries respectively. Additional protocols to these covenants may have not been acceded to by all member states, as optional protocols are distinct documents requiring separate ratification.

For instance, one existing optional protocol to the ICCPR authorises the UN’s Human Rights Committee to consider “communications” from those claiming to be victims of state abuses, while another calls for the abolishment of the death penalty, but not all states have ratified these optional protocols.

The need for an international framework for enhancing technological rights has spurred the call for a Digital Rights Treaty as an appropriate way forward. An optional protocol would advance technology and infrastructure, while protecting digital privacy and the plethora of intersectional activities listed above. The protocol would also incorporate technological infrastructure for enhancing political, economic and social rights, thus aligning with the UN Charter, which seeks “to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” art. 1(3)

But what about digital rights per se – is this a separate right or should digital rights be interpreted as a universal right available to all mankind? In addition, is the right to Internet a human right? These are some of the issues that the drafting team will have to engage with as it pitches digital rights onto the world stage.

What can an Optional Protocol achieve?

Since an optional protocol is a distinct document requiring member country ratification, it will engender visibility on the global stage and propel discussions on the need for technology itself, as well as for the governance of technology within the arenas of political, economic and social rights. This is likely to impel governments to consider up-scaling existing technologies as well as establishing infrastructure where none or little currently exists. Further, a protocol will catalyse deeper discussion of digital privacy, government and civil accountability, and the governance of digital privacy. Digital corporate governance and the use of technology for development and to digitise continents and countries, will also feature. A Digital Rights Optional Protocol is potentially a very powerful transformative tool.

Propelling this conversation onto the world stage is more likely to prompt leaders to ask the right questions in today’s warp-speed changing world and may induce them to consider a new optional protocol or even amendments to the existing covenants. This would accelerate a progressive shift to digital rights and governance and towards digital socio-economic development via Information and Communication Technology (ICT).

Digital rights are not a distant future ideal but a reality in our fast-paced and increasingly technological world. The time for a digital treaty is now. It affects all our rights, personal, creative, legal, corporate, governmental and juristic.

Our reality has changed.   Let us move with it.

See Abbrevaited version published : 9 June 2014, Business Law and Tax Review Business Day, South Africa