•

•
• •
•
• •

• •

-- �--
• •
...__·­
...

•
•

•
•
•

•
"""' .
. ·,

•. .

•
•

•
•

•
•

•
 •

11
I N T E R N E T LAW
•

P O L I C Y AND

GOVERNANCE

I : D O E S
179

L A E X I S T ?
•

. e an rverse ran .

rsory 9 ance at the ' '

. . . . . ma ers that are enor . .

In IV1 uals and gro . .

of some of these d o m a i n s include: ups across societies. Examples

• internet and business: electronic corn. rnerce l aws .

online c ·

. t t d . ' scr1 Ing, on ine pharmacies

• 1n eme a11 e u1 · ·

• internet and education:

. online courses and d egrees, plaqiansm,
. . uses of computers in

sc h oo ls, content filtering for minors

exchange, fair use provisions . .

• . privacy issues: cryptography, protection for online transactions, personal information

privacy, employment privacy, datasecurity. the right to be forgotten

• security issues: c:yberc:rimP., spamming, online harassment and cyberstalking, hackinq,

•

identity theft, the internet and terrorism. •

This is already d lenqthy list, and it would be easy to add to it. The legal, policy and

regulatory implications of the internet's rapid development are rendered even more complex

by three particular issues: the unique attributes of digital information, the global nature of

the internet and network infrastructure, and the extent to which the internet is not a single

medium, but rather a series of layers that are already subject.to.particular forms of media and

communications law.
It has been observed in this book that digital information accessed through communication

networks has the attributes of being intangible, geographically dispersed, recombinant and

continually changing in both its form and character. This contrasts ·to the traditional bases of

law where, as Jan van Dijk has pointed out:

Existinq l e q i s l a t i o n d e p e n d s upon clearly demonstr_able, localisable and liable legal persons and

o w n e r s h i p titles. Information and evidence have to be, or must be able to be, set.down on a data

c a r r i e r that h a s still to be c o � p a r e d to printed paper (van Dijk 2012: 138).

This contrast between the fluidity· and openness of the online environment and the need

. anonymous o rh a r d to trace back to an origi nal source and eV1dence can be destroyed, hidden,

wiped or alte db omputer systems operators. It is reflective of the extent

r� y computer users or c .
 I
I

NEW

M E D I A

'the internet itself, as a technology predicated

n has observe d , ·· .
I

180
interopera 1 1 Y

. ined trad1t1ona s .

ure of the in erne

I

· sis of laws, po 1c1

d that 'the trans or

· ure aroun w 1c '

velo . This 1s no . .

· s d1scusse in is r • • •

. ulatable domain as e

· · in one terr1tor1a JU

· · · others ace or t ere can e

can or should be regulate t a are re . . · ·

The transnational nature o e in e . .

. · · · · tances 'arrange their affairs so that-they evade domestic
corporations can, 1n certain c1rcums , . .

regulabons y s rue unnq . .

regu atory regimes roo . .· · . .

users to evade domestic laws that they may deem inappropriate or wrong is further promoted
•

through the uncertainties surrounding legal and territorial jurisdiction in cyberspace .

•
finally, there is the question of whether internet law does, or should, exist. Just as the

internet marks out a convergent space between computing, telecommunications andmedia,

•

we also find that what we term 'internet law' is marked by the application and extension.of .

laws developed for other media and communications technologies, such as print.broadcastinq
•

and telecommunications. It has also involved the extension, in a largely unplanned and
•

incoherent manner, of areas of civil, criminal and corporate law· developed to address quite

different issues from those presented by networked and convergent media .

•

This raises the question of whether one needs to discuss internet law at all, or whether it

is simply an amalgam of laws and regulations applied in other contexts. The arqument against

internet law was presented byJudqe Frank Easterbrook in his 1996 essay �Cyberspace and the

Law of the Horse', where he argued that just as laws that apply to horses (laws concerning

selling a horse, riding a horse, being, kicked by a horse and so on) are laws that apply to other

things and are not horse-specific, then we do not need to think �bout different laws that would

apply to cyberspace (Easterbrook 1 9 9 6 ) . The c,ounter-argurnent is that while conventional

•

with an awareness of, and sensitivity to, the nature of its network architecture, that render

1 9 9 9 ; Solum 2 0 0 9 ) . · ·

•
 11
I N T E R N E T LAW, ·

P O L I C Y AND

G O V E R N A N CE-

FIGURE 1 1 . 1 .....

181

)))
)))

•
•
..
- •

• -
•

•
Source: Australian Communications and Media Authority 2011: 6
• •

This raises the issue of.whether platform-based forms of media regulation can be sustained

· in the context of media convergence arid, if not, then in what ways do· these laws· and· policies •

need to be transformedandadapted? This question of what convergent media policy may look

like has been the subject of considerable engagement by governments, analysts and industry

representatives over recent years, and this will be considered in relation to media policy

enquiries in different national jurisdictions (Flew 2 0 1 2 b ) . ·

This chapter will begin with a discussion of different approaches to internet governance,

with particular reference to Lawrence Lessig's {2006) concept of law, code, norms and network
•

architecture as different forms of regulation, as well as regulation through markets.· It will

also discuss the relationship between internet laws and policies and those for media more

generally, in the context of convergence. The second half of the chapter will. specifically focus

on copyright and intellectual property laws as a specific domain of internet law and policy,

considering the Creative Commons movement as a case study in developing an alternative

·approach to laws governing digital property.

G O V E R N A N C E

•
"

NEW

M E D I A

nee forum (IGF es a .

182 ac v1 I t Governance e ne
. onlnterne

. d velopment by governmen ,
ternet governance ts the e d . . o n - m a k i n g p r o c e d u r e s a n d programs,
1
n red rinciples, n o r m s , ectsi

th the ins t itu t i ons and a g en ci e s responsible

, · · tend e d to capture b o i.. •

Theterm ' g ov e r na nce 1sin . . . , .. _ "S It-ackrrowledges that s u ch practices

. throu n wmcn iro c cur . . . .

. cor o ra ti o n s , in us .

It is a ls o pre mi se o

. · · od1fic at 1 o n o e a '

rules. d . useful tripar ti t e di s tinction between policy,

Des Freedman (2008: 13-14) h a s p ro pos e a

regulation and governance.

• Policy· The· goals an norms a 1 .

· • • • • • • �-- . : : :i., -1- -"""�.,....- � i.. � -"'" • ucture and behaviour of actors
intentions anU:u:t:S(IUffi-ellL:> d :> ::t U L .i a L C U W .l L .l L ::>.1Lap.l..1•y L i [ C" .:> L .l • • • :-
•

... .
•
-
. - ,· . -
• •

-
.
-t
-
•
•
. ., " '""" -
• •

· • Governance: The totality of institutions and instruments that s h a p e and organise a po��cy

•
•
••

. -·- ' . and smaller-scale. ..

�. .
••
...., .::�-
. ..:: .. •
•

Internet governance operates in both a narrow and a broad sense. In the narrow sense,

internet governance is 'about the ordering of whatever technical systems enable the·operation

of the global network of networks as a platform for applications': (Solum ·2009: 49). In terms

of Figure 11.1, it is concerned with the infrastructure of the internet: it is concerned with

the TCP/IP backbone of the network, the IP numbers that identify individual computers or

servers and the domain name systems that serve as identifiers of websites and their add1esses,

conducted by non-governmental (but US-based) entities such as the Internet Engineering

Task Force (IETF) and the Internet Corporation for Assigned Names and Numbers (I ). But

internet governance in the narrow sense also raises issues about internet governance in the

broad sense, or laws, rules and norms relating to both the applications through which users

access the internet and to the content of the internet itself: .

The technical infrastructure of the Internet interacts with the ability of g o v e r n m e n t s to regulate

applications, content and h u m a n activities that are e n a b l e d a n d facilitated by use of the Internet.

gambling and child pornography, to the efficiency a n d t r a n s p a r e n c y o f t h e world economic system,

2009: 50) •

ungoyernable realm. Former Grateful Dead lyricist and internet freedom activist John Perry
•
 11
I N T E R N E T LAW
•

P O L I C Y AND

Barlow famously proclaimed cybers ov E R N A N c E

pace to be 'the lob .

, n ustnal World Y 183

n l more, ar ued th , . an

' e itor Kevin .

, ··· e nternet is the l .

. . . · · n is predominant .

, ecen ra ised and net

op se -govern1n O
• • .

. P, cou realise the f . .

ons itution ther · ·

an 1 s ar more e the ' · '

good' {Godwin 1998: 23).

belief that such a.medium could be governed throunh the r11]Ps and.norms nf �plf-nnuQ111;n,,

mass medium in the course .of the 1990s. Moreover, as governments around the world put forth
•

• •

• •

and Global Information Infrastructure {GII) initiatives of the Clinton-Gore administration

in the US released in 1993-94 and the European Community's Europe and the Global

InjotmationSocietyibonqemaim Report) publishedin 1994, it.was·unlikelythat·they would .

leave governance of such a vitally important-.infrastructure to the vagaries of spontaneous.

cooperation among voluntary communities. ·

Finally, the mid 1990s was· also the period in which the internet became a fundamentally

commercial medium as well as one used for communication purposes: in 1996, the number of

websites with the suffix .com exceeded 50 per cent of all domain names for the first ti me (Zakon

2011). Critics of cyber-libertarianism, such as Robert McChesney {2000), had long argued that

the focus on state power and the threats to freedom presented by governments served to obscure

the rise of corporate power and the inequalities arising from the operations of markets, while

Lawrence Lessig {2001: 267) drew attenncn to the risks that internet freedom activists would

'win the struggle against state control so as to re-entrench control in the name of the market'.

Legal scholar Lilian Edwards observed that 'in the earliest days of the internet, the debate

about illegal online content was arguably dominated by ''cyber-libertarians'', who viewed any

Th.e b lib t · d h d retreated and it had become well established that nation
cy er- 1 er a r 1 a n ten ency a · . .
· h l t nd an interest in re!lulatinq, the Internet, and m particutar,
St a tes h a d b ot h t h e rig t to regu a e, a ·
· · · · th Internet ceased to be t h e plaything only of academics,
an mterest in protectinq ch1ldren as e
• f daily social a n d family life (Edwards 2009: 626) .
r esearc h ers a n d geeks, and became par t
O

. L ig (2006} critiqued the idea that the internet was

I n Co de: Verszon 2 O Lawrence ess . .

me owunregulatedorunregulata e.
 •

•
•

N E W

M E D I A

ocio-technical network that enabled

but was rat h er a s

184 ron 1 . . ssi argue

me ra e r the part1cu ar c

. . to occur t rou . . .

5
a more requ a e

ould seek to con ro i

artly because governments w Ii aces would be 'demanded by users and
P
e m e n t o f o n i n e sp , , .

, . 38 Arc 1 ec
006.

. . · uthenticat1on an ere '

. bein use or on

. he extent to which the internet IS regu a e

Goo le as a search engine, the sites it irec s u .

ranked according to an algorithm eve ope Y . . · ·

. · l th sites in turn directinq us to other possible friends
to identify friends or contacts 1nvo ves . ese . . . . .

or contacts based on a pro a i 1 y in ex . . .

- ..

·use of the internet overall. So Lessiq's point was that the internet was already a regulatable

-
. ' -
-
. : - � ..:. - . .
..... � ... . - .
•

' <
•
understanding of how regulation works' (Lessig 2006: 1·21), ratherthan·a single-mirtded�drus ·

-
•
.
• -
••
- .
upon the threats to personal liberty presented by governments. · :.
•
•

• ••
Lawrence Solum (2009) identifies five models of internet governance.
•

1 Spontaneous ordering: Regulation of conduct according to shared norms and values among

user communities. An example of this relates to the rules that gov ern what comments can
• •

or cannot be posted on particu lar online sites as legal frameworks provide only limited
•

guidance for such decisions (for example vilification or incitement to violence may be

illegal, but making a racist or .sexist comment is not), rules have evolved among user

communities themselves and adherence to them forms a basis for ongoing engagement.

2 Transnational institutions and international governance: International non-gove11·unent

•
•

organisations (INGOs) such as the IETF and ICANN have emerged to manage core aspects

of the internet infrastructure, such as the allocation of domain names, on the basis that

'internet governance requires institutional structures that cross national boundaries'

(Solum 2009: 5 9 ) . There remains, however, a tension internationally as to whether these

roles are best performed in an ongoing way by such INGOs, or whether their functions

should be absorbed into more representative international organisations such as

the International Telecommunications Union {ITU), as was recommended at the ITU's

(Schemeil 2012).

3 Code and internet architecture: Design attributes of internet hardware and software

•
 -

I
11
INTERNET LAW,

POLICY AND I

GOVERNANCE

established that the internet infra t . .

5
. . ructure is itself i ·

185
app ications bein I

a particular rovi ·
I

ers, may e able to .

es o content .

O
· . . 'over er types of content, thereb underminin

. erne u 2 0 1 1 : 310-17 .
4

criminal law in relation to such matters as crime f d d f · · · ·

. . . , rau , e amation, tncitement to violencs,

whether governments possess furthe · ht · l · · · ·

. . r rig s in re ation to blocking or restricting access

to certain types of content. _This issue most typically arises in relation to some forms of

pornography, but may also arise in relation to material seen to promote terrorist acts or

to support proscribed organisations. There. are, for example, prohibitions in Germany on

distributing and accessing neo-Nazi material on the web; such material can be produced

and distributed in the US.

5 Market regulation and economics: In line with growing interest on the part of governments
I

inrequl ation thro11gh the_market,_as distinct from command-and-control requlation-ofthe­

•
.market ( Freiberg .2010: 108.-c:3·1), aspects of.the internet ar.e requlatedthrouqh commercial • •

transactions and industry.self-requlation .. Domain·names,.for example, are internationally

·-

traded subject-to their. release into the·market.by ICANN,-and thehiqhest bidderscan

access the most commercially desirable domain names. Similarly, in relation to children

being unable .to access inappropriate online content, parents and schools can purchase

different commercial web :filtering ·software, as distinct from relying upon government to

block access to such materials online.

•

Solum concludes by recommending the adoption of hybrid models of internet governance

that draw up on elements of all of these five approaches:

The best models of internet governance are hybrids that incorporate elements from all five

· lex task requiring a complex· set of regulatory mechanisms.

models. Internet governance 1s a comp . .
· f nance is a combination of requlation by transnational
As a result, the optimal system o gover . . .
. . . . hit t re that creates transparency, national regulation, and
mstitutions, respect for the arc ec u 1

markets (Solum 2009: 87).

C O N E R G E N T

is that of determining the relationship that

. . . nmen t s

. . . e to me ia po icy . •

. et were pursue

. . . . .. · as seen as ge .

. t nt deve op
concerning media ownership, con e •

been a part of traditional media policies.

•

•
 NEW

MEDIA

di . has. however been dramatically transformed by digital convergence and

e
ia po1icy , ' ,
M
186 associated developments such as media globalisation, the blurring of boundaries between

media forms and industries and the greater ability of media consumers to themselves

same media content can increasingly be accessed across multiple devices, including tablet

PCs, smartphones and internet-enabled smart televisions. As discussed in Chapter 5 (see

Table s.n. these developments can be seen as marking a shift from the mass communications

media paradigm of the twentieth century, towards a convergent social media paradigm. This

in torn not only require s new policies for new media, but also points to the need for a wider •

rethink of both the principles of media policy and the regulatory instruments through which

it is enacted.
National media regulation developed over the twentieth century with the rise of the mass

media of film, broadcasting and, to a lesser degree, print. In particular; broadcast media were

subject to extensive government regulation on the basis of public good characteristics of the

media product, and the need to manage access to spectrum. Industry-specific regulations

governing ownership, content and standards were developed, arising from the perceived

ce!l!r�li�of:t� broadcast ,1·1Pdi11111 ta p11h)ic ca 1 1 1 1 1 1 1 1 n i ca ti o n ,

� - of media owners
the canacitv

to influence public debate and concerns about potential risks to children and .others­

:. .. . - from exposure to harmful media content (Picard 2011; Doyle 2013). While many ofthese:

regulations are negativ e in the sense of setting controls over access to -broadcasting licences -

., .

o� restric_tions on what can be screened, there have also been more positive regulations th�t

aim to stimulate various forms of local content production, including local drama, provision

•
-
•
- programming.
- ' .

-
. •,

• .....___ ��
-
!,
..
J .... �-'T' •.-
.The 2010s
. saw significant prop osa l s for me diia re form developed· through comprehensive v ,

policy reviews. In the UK th

WI its questions of ho . .

current government has also com . . '

, new eqis ation to O to ·

· mqapors the M · .

Vlew in 012 (MDA 2012 . . .

vergence Revzew Conv . .

' ew an Swift 2 0 1 3 . ,

assz cation Sch . .

e o servation . .

, a regulation con

ow 1 is delivered · l · · . ,
ACMA 2011: 6 ) . is osmq its force, both in logic and in practice
(

0
• . . eg1slative re · ·

. on ine media a . .
uncertain relationship b t . mounts to censoring the internet. Another is the
e ween nation · ·

15
. ' I notable that · th
axaticn obligations of . comparable issues have been arising around e
t
companies such G .
as oogle, Apple and A m a z o n . Another issue is that •

•
 11
•
I N T E R N E T LAW,

P O L I C Y AND

G O V E R N A N C E

of what is known as 'regulatory parity'· reg l t d . .

. . · u a e entities su 187

1 re uce restrictions · .

e ey are more influ · · ·

. . . as e s 2009 ar . .

ta agents the much discu ·

· · e ne wor s themselves, and that while lar 9 e

media corporations have a dominant

. position th roug h sue h networks, their power can also be

harnessed by smaller, more-nimble-entities such as w1

· k1· L ea k s, citizen
· · · ·
Journalists or hacker

groups sue h as Anonyrnous.

In
. relation to
. determining who are now the key me d"ia players in
· ·
a convergent media

media concentration m the US was less pronounced in 2005 than it was in 1984, and that the

internet had been an important part of that trend, but that the digital pessimists were also

right to observ e an increase in media-concentration between 1996 and 2005. Noam argued

that the key to understanding media ownership questions lies in recognising that a two-tier

media system has been evolving, with large integrator firms operating in oligopc,listic market

structures being at its core, surrounded by a large number of specialist firms that undertake

much of the actual contentproduction,(Noam-2009, 436-7). The second half of the 2000s was a

period of crisis for many ofthemedia conglomerates that had dominated the previous decade
•

companies-.such as Time;,-Warrter, .. Disney, News. Corporation,.Viacom/CBS· and Sony . triggering

•

. the debate about whether there was a crisis of the media moguls. But in many of the media

markets in which these media giants operate, their challengers were now big ICT and software
•

companies such as.Google, Apple andMicrosoft: newspapers compete-for reader attention with
•

on l i n e news portr1l s, tPlP.vision networks battle with YouTuhe for the attention of screen media
•

consumers, television programs�··music:and·movies- are·increasingly downloaded from.i'Iunes:

or Netflix and so on. In other words, the.big internet and new media players are corning to play •

an increas ingly important role in traditional media environments.

'

•
•

P R O P E· R T Y L A ·

l issues are being played out m a variety of national and

d ll·cy
governance. Th ese lega an po .
· t ti lf d tthe core of how the global knowledge economy in general, and
in erna iona orums, an are a

ongstan mq issues w1 more co .

was first
· enacted m Britain m · · . .
l work of fourteen years as an incentive to produce

protection for the author of an or1g1na . .

new works and set a limit t o

. t e une
th1
public domain of twenty-one years. The US Congress,

works was ceded from publishers to e

 •

NEW

M E D I A

· ts after e . ·
188
t of the pnncip e e
Act of 1790, as an enactmen , ote the Progress of Science and useful Arts,
. . s the ower to prom . . . .

· · · mes to Authors an nv

- · ' vidin bot pro ec .

O
, · statutor 1m1 s • • .

. . · n one of the orrqma . . . .

. hich ' the public goo d f u y coiner ....

an o utco m e in w I

· · · v e d fr o m th e pr1 nc1p e

· b e a le b to a proprra e a

a new o ri inal work of a u thors ip. p re um s . . . .

b e lon t o in dividua ls , w ho have o a mora . .

right to d e rive mater al ben i e ro rn e u . . . .

· · l k It l pr es um e s th a t t h e u se of the r or i igi nal i deas an d

to crea te furth e r oriqma w or s . a so

ex ist in t he pub l ic do m a in for fai r u se b y other s. M oreover , since s u ch information i�--�e

• •
••
. ..
� -�.
•
...... -·. .

... �..L:.-. � . .. -
. � .-
Lif e blood of de mo cracy, c omm e ce a
r n d the de v elo pm ent of f u t u re k no w l e d ge , br oad acce s s by

th e co mmunity to the w i des t p ossi bl e p ool of · i nfor m a ti on , k no w led g e an d f o rm s f

o c reati e v

e xp r essi o n i s a val u able end in itself as a condition fo r p artic pa i ti on i n pu b lic life and the
• ='"
. .•
-
•
. .
•
' . d v lo
e e p ment of ne w kno w ledge. In order to b alan e these competing cla ms
c i o n kn o wledge, ·
•
•
-·
..... ., ... - ••>
. .. .. ..·-. •
-
. ,. ...
. .. ' .
'
•
.
.
•1
�·
. ..
,
( .
. -
. • .
- copy ight la r w divides up the p ossi b le ri hts in and uses of a work, giving c ntrol over-some
g o

' . �

- ..
•

of these rights to the creators and distr b i u tors and c ontrol over o he t rs t o the gene al public r

(L tman 2001: 16).

i .

Copyright law has brough t forward fo u r endur ng i ques ions t for lega l experts, pol cy
i

mak rs, cont nt producers, copy

e e ri ght owne s and the ge r n eral public:

•
•
• •

1 identifying the most appropriate balance between public good and private benefit criteria

for the use of, and access to, information; this balance is one that needs to both support

innovation and the creation of original content, yet also promotes sufficiently widespread
•

access to existing information so that it can be effectively used to create new knowledge

2 deterrninin� the most appropriate balance between individual rights of ownership and

forms of social use for common benefit

3 dealing with the legal implications of knowledge existing as both a commodity that can be

u s e d for commercial advantage and as a public g o o d available to all for common use

4 the best ways in which to both promote and equitably share the benefits of knowledge and

creativity.

The neat distinction that copyri ht law seeks to make be ween private ownership and g t

public use has often been diffi ul c t to s u sta in in practice. Three areas of distinction h av e been

partic u larly contentio u s . First, fa ts, ideas c a n d conce p ts are not themselves copyrightable-
 '

11
I N T E R N E T LAW,

P O L I C Y AND

(;ov E R N A N C E

. . . ' e ways in w 1ch they are expressed

189

s sue as ooks, publications

. . . . s an exc us1ve rights over 1s

, a orm rn w ic t at work
is produced and distributed. In the case of a book for PXample the · · l th t ·
. , - , onqma au or re ains

exclusive ownership o f the forms of creative expression that constituted that book, but is

assumed to have contractually assigned the rights of reproduction of that book to a publisher,

and in turn derives subsequent benefit from that publisher's activities in distributing the book

in the form of royalties or other forms of financial remuneration. Third, there has developed

alongside copyright law a series of exceptions that are deemed to be in the public interest

to make material more widely available at no cost. These fair use or fair dealing provisions
•

for private, non-commercial uses without authorisation, have been typically applied to the

photocopying of works in public libraries, but are now extensively applied in the copying of

software applications and the placing of materials (for example sections of books and academic

journals used for teaching purposes) on the World Wide Web. .

Embedded within copyright, then, are two competing normative visions of intellectual

property. One is the notion that it that can be privately owned as property, from which its

u vv I t e i S l'.di't eX.l,it!L \. d iea.�011ctLlc lcve't of re1Li.UJ.i.E:1ctliort f101cc its use. 'Iheother is that intellectual

•
- - .

TABLE 11.1 � COSTS ANO BENEFITS OF A COPYRIGHT SYSTEM

.
•
- • •
• •
-
•

•
•
•

Access costs to users

Greater revenues to rights
•
•
• •
•
Short run •

•
•
•

•
Administration costs
• holders
•
' Transaction costs in trading rights
•

Userinnovation being obstructed by the

• Greater incentives to supply •

Long run • •

•
costs of compliance
copyright works for rights
•

•
holders

Source: Handke. 2011: 4

· ontal axis o con '

in terms o powe .

. · tal axis as e

. i of copynq

. . . typically t e is . t
contracts in the creative 1ndustr1es, ful interest group whose interes 5
. . mselves as a power .

· osit1on o,
0

. d copyr1g a .
group of end-users of copyrighte or .
•
 •

NEW

MEDIA

. ECTUAL PROPERTY REGIMES

FIGURE 11.2 �
190

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•
Of the many issues that render copyright law ever more complex· and significant ·1n:··an'age

of new ·media and the internet, four stand out. First, the rapid development and mass

dissemination of technoloqiss that enable low-cost reproduction of digital information has

at a· time when the reproduction of a work bore some costs (for example the costs of printing

a book), the development of low-cost copying and printing technologies readily available at

home, work and school or university has meant that more and more people have the ability to

copy materials at near-zero cost. The commercial creative industries are characterised by high

costs of production of original material, a high failure rate for new commercial product and

near-zero costs of content reproduction (Hesmondhalgh 2013). From the-perspective of rights

holders, the unauthorised reproduction of works appears as a problem of piracy, and much

attention has been given to enforcin g c o py r ight in the face of ill egal c opying, which is seen

as preven.ting rights holders from a mortisi ng the consid e rable up-front costs associated with

the production of new creative works. O n the other hand, critics of the copyright industries

argue that inequitable pricing arrangements are drivers of piracy, particularly in developing

c o u nt r i es, and i n s tead argue th a t i ns u ffi ci ent attention has been given to alternative business

models in a transformed digital en v ironment (Karaganis 2011; Lobato 2012; Bakhshi, Freeman
and Higgs 2013}.

Second, the rise of a knowledge-based or creative economy has seen intellectual property
 •

'

11
I N T E R N E T LAW,

POLICY AND

uc at is likel to

. . note, the kno rme. 191

. car e s from the ea . en s

e commercial · · ,

. ra ion, or the value o

r e content was on i

. ua propert I'I hts .

. . . ngage primanlxlnjh e · .

- r1a iwek 2 0 1 2 · 7 · th . .

, ion pictures record · ·

. · or nte ectual Pr · ·

to 750,000 in 2008 (WIPO 2012b 33). '

and extension of legal protections to intellectual property has occurred at a time when 'the
•

texts protected by intellectual property laws signify: they are cultural forms that assume

local meaning in the life worlds of those who incorporate them into their daily lives' {Coombe

1998: 7 ) . Lawrence Lessig-has referred to this as 'remix culture' (Lessig 2008), with elements of .

-
the pro-am creativity:and participa-tory·media cultures.that were discussed in Chapter 5,:in the

context of what he also terms 'read-write media',:in.contrast to the professionally produced

'

read-only media that prevailed for much of the twentieth century. .

•

Fourth, copyright and intellectual property law have been progressively globalised over •

'

time. The European states agreed on a common framework for copyright law _through the

Berne Convention for the Protection of Literary and Artistic-Works (1886), although the US

was a conspicuous non-signatory to this convention (Drahos and Braithwaite 2002: 34-5).
•

In more recent times the US has been a leader in promoting international intellectual
I

property regimes, not least because its copyright industries are seen as most at risk from

product piracy. The Motion Picture Association estimated that in 2010 piracy was costing

the audiovisual industries worldwide $ 1 8 . 2 billion annually, and the major US film studios

$ 6 . 1 billion a year, with pirated content accounting for over 80 per cent of movie vie�ing
•

in countries such as China Russia and Thailand (Lobato 2 0 1 2 : 69) As the world's leading
. ,

than 100 nations in after agreement by the signatories to the General Agreement
1994

'

•
•
'

.'
 NEW

l'\ E D I A

192 L A

. om eting interes .

· ht law 1s a . . . · a 1e a .

change to combine w1 · h
· . fl al and policy c h a n g e s , . t Advocates of strong copynq t
the impact o eg . . edia env1ronmen · .. .

increasing Y u . owled e enta1l� l 11 l

protections a . roducinq onqma

an t a . . . e· uarantee1ng .

t an e re-condition for inn ova I . .

di t ibu tors is seen as a necessary p k tensions of copyright protections

is n ral to two ey ex

. · r1 ht Act t a wa

. ens1on Act 19 · e

· · essrnan an or

· t rotection or cop

· f the author p us seven .. s ·

.. :r- ••
-
•
- legislative changes meant that Mic ey ouse wi �. ,;,--;_:;--:...
1-�
---- -·
..,..,.....
-

(Rimmer 2003).

Critics of laws
•

environment argue that:

•
..... ,�� .

-
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-
•

• •

..., - . ·� - -.,

-
•

between 0.3 and 0.6 per cent of GDP ·

• benefits of strong copyright protections for past content creators become costs for later

•
creators associated with tracing copy_right holders, seeking permissions and having limits

set to transformative use that are seemingly arbitrary; Ruth Towse observes that 'these

transaction costs of searching and tracing . . . [are] a disincentive to creativity as well as an

•

incentive . . . the shorter the duration [of copyright] and the more exceptions there are, the

lower the cost of creation' (2010: 351-2)

•
information is not only a public good, and hence warranting government oversight of how

it is produced and distributed, but it is also what Michael Perelman (2002) has termed

'a metapublic good' that generates positive benefits to a community when it is freely

available in ways that cannot be calculated. This is because 'information is not scarce,
• •
•

except to the degree that society allows agents to create artificial scarcity through secrecy

and property rights . . . as the economy becomes increasingly dependent on information,

the traditional system of property riqhts applied to information becomes a costly fetter on

our development' (Perelman 2 0 0 2 : 178)

new knowledge is a combination of both individual and social labour, and current insights

building upon past knowledge, so attribution of the rights associated with its creation to a

single individual can b e problematic (van Dijk 2 0 1 2 : 15 7)

•
•

the benefits of strong copyright protections to content creators (artists, intellectuals

and so on) is commonly overstated. The seventeen leading American economists whose
 11
I N T E R N t. l LAW
•
II
P O L I C Y ANO

•
· . G O V E R N A N C E

temen t questioninq the economi

sta b .
. ic enefits of lon .
I'

. , or example ar ued th o ge 193 I

. . e onny Bono Co ri .

o creators of less tha

. o S ron co ri . . ,

• strong copyright protections have th e e ff ect of .

criminali
. · ·

. . , sue as e sharin _ - _ .

a reassessmen o · · · . •

observed that its terms of reference required it to consider: '

•

copyright material in ways .that.willbe socially and eco.nomically beneficial . . . The context

and political eco.nomy of copyright law-is changing as copyright has a·more direct impact on

disparate.· usersand producers, ex-tending beyond rights holders andinstitutional rights users .. •

(ALRC, 2012: 14)

•

As noted above, the Hargreaves Review of UK copyright laws recommended significant

extension of fair use provisions in·order to reduce the deadweight-losses: associated.with •

current lows, which were identified as.significant barriers to the .development of UK creative

industries, and innovation more generally, 'in the global · digital ··economy (Hargreaves

2011). It has been argued that strategies of enforcement and deterrence in defen ce of

existing copyright laws have not only faile d to reduce copyright infringement, but have

also been undertaken instead of business model innovations that would provide.lPgitimatP

alternatives to consumers seeking digital creative content in.�onvenient, lawful, timely and

affordable ways, offering users the carrots of legitimate digital distribution channels rather •

than relying upon the sticks of harsher and more regular enforcement of copyright laws (Flew

et al. 2013). .
The economist Hal Varian has observed that since digital information is very easy to
•

copy and distribute, the prospect of eliminating all forms of illegal copying is near zero, so •

alternative business models need to be considered by copyright industries. These can include •

price discrimination (for example making the physical copy more attractive to consumers

than the downloaded version), delivery of bundled s�rvices (for example providing free access

to a back catalogue for subscribers) and·advertising around digital content a s a n alternative

revenue stream to direct sales. Varian observed that 'copyright is a second-best solution

reducing levels of content piracy (Varian 2_005: 13 9). •

 •

'

NEW

M E D I A

. · in e m e r g i n g economies for the US Social Science

. . ud of media piracy . . . .

194

· Kara arus . .

. a r1mary nver o
I

· ht education a

. · et1t1on that re uce . . .

. · all levels of piracy. o .

. · business mo e s, ra e . .

that are likely to u tuna e Y · · · ·

infringement, as will deve oping sus ai

the digital a g e . .

Internationally, t e greem . . . .

of intellectual property, in w ic s .

nations a I • • •

copyrig , ra . ,. . . .

arrd diffusion' (2002: 172) ·

When extended to the global realm through a gr ee m ent s s uch s TRIPS,

a overse�n:��

the e quity o f such ar r an g ements b et w een economicall y de ve l oped an d developing countries,

· for two reaso ns . First, the vast bulk of intellectual p r o perty rights ar e held in a small number of

countr ies; in 2 0 1 1 , five pat ent of fi ces (J a p a n, the US, South Korea, China and Europe) accounted
• • •

for 80 p er c ent of patent applications g ranted worldwide (WIPO 2012). Second, the near-zero ·

cost s o f r e p rod u ction o f di gital g o o ds enabled by new media technologies create strong

in ce nti ves in lo wer-wage co u nt r ies to copy suc h m at er i a l s (DVDs, computer software programs

and s o o n) and resell t he m at substantially lo wer pric e s than t h ose offered 'to consumers n
i

higher-wage n a t io ns . In this sens e, what right s h olders in t he West label 'piracy' may be seen

in the developing world a s a ra tional res p on s e to inequitable global pricing arranqements, or

even as a form of resistance to First World knowledge monopolies {Lobato 2012: 71-4, 80-2).

At t he same t ime, t here is a n e e d fo r s o m e caution in p r esuming that digital technologies

provide a power of t he w ea k, where content p iracy is a form of street-level counterpower in

the face of i nternational a g ree m ents such a s TR I PS tying developing countries to copyright

and intellectual p r op er ty laws developed solely fo r the benefit of Western multinationals.

In order to g r ow t h e c re a ti ve econo my in d eveloping countries, and realise the value that •

is readily apparen t i n local p ro d uction in t erms o f sal e s and e x p o r t s , it is important to note

that widesp r ead piracy in d e v elo p in g c o u n t ri e s has its major impacts, not upon global med i a

cong l ome r ates whos e blockbus t e r films ar e beinqpirated, but upon local creative producers, as

a culture dev el ops t hat does not c o n s i d e r p a ying for cre a t i v e works to be necessary. Analyses

of the music industry in Afr i c a an d th e C a r ibbea n ha v e o b s e r v e d that s i n c e pirate d i stribution

c hains a re well resourced, a nd lo c al enf o rce m en t regimes ar e w ea k, piracy s ubvert s

dev e l o prn ent of a s u s t a i n a b l e loc a l mu s ic i nd u st ry, m a k i ng it difficult to inv e s t in music

p r o d u c t i o n a nd d i s t r ib ut i o n fa ilities a n d s u p p o r t loc a l a r t i s t s (Pratt 2 0 0 8 b ; James 200B).

M o r eo v e r , it d e nies l o c a l c r e at o r s a cc e ss to a r e venue s t r e a m outside of th e live perfo r man c e

 •

11
I N T E R N E T LAW, I

P O L I C Y A N D

• • • G O V E R N A N C E
circuit, in an environment that differs f h . .
. rom t e s1tuat1on i

. . s an royalties It . 195

, a n exodus of creati

� C A S E S TU D Y : c·R E A TI V E C O M M o N s

of t h e i r content with a CC badge and a n a g r e e m e n t in advance of individual use to the legal .terms

a n d conditions attached to this use through a Legally b i n d i n g CC licence. It aims to overcome three

bottlenecks that current copyright a n d intellectual property laws present in the digital environment

t he d iffi c ultie s fa ced by reus e r s of alr e ad y exi s ting conte n t in locati n g a n d negot i ating with the

i ni ti al c o n t e nt c r eato r s, th e q u e sti on . of right s a n d c o ndi t ions a tt ache d to reu s e of existing digital

•
•

content in o t h e r doma i n s for co mm e r ci a l o r . n o n - c o rn rn e r c i a l pur p o s es and the ex t entto·which existing •

-
copyriqht a n d intel l e ct ual property laws-circumvent dir ec t neqotiation.between.content creators and · • •

p r ospe c tive us er s of ·c op y righ ted ma t e rial t h r o u g h the a ss i g n a ti on of rights to content distributors,

who then m a n a g e all l eg al a spec ts of c on t e n t r e u s e a n d re p u r p o s i n g rat h er t h an the direct producers

of t he o rig i n al co nten t .
•

Creative C o m m o n s was founded i n · 2001 by a ser i es of h ig h- p r ofile in te ll ec tual property experts a n d

a d been d ev e lope d 1 n sev e nty - ve co . .

1n t ernational e xpa n s1 o n o rea ve om . . . .

legally effective harmonisation o t e rea .

law within di f f er e nt countries.

. . een to simplify t he range o c oice

. . . . sc1en t 1fi c a n d diqita pro uc 1

•
. . . entl of thos e w o is r1 u e

. re ar e f o u r ca aqone •

. . ks bas e d u p o n 1 u
c o pyrig h ted work a n d d e r1vative wor

for d i s c u s s i o n .
•
 NEW

MEDIA

. d " s p l a y a n d perform only verbatim

distnbute, l . . .
•

mitted to copy, . hi way t h e i n t e g r 1 t y o f t h e o r 1 9 1 n a l

. . orks: Others are per ased upon rt. I n t t s '
3
196

d a s can . to d1str1 u
•

. . . al conten c . work. Its ou .

4

the share al1ke an

feature b o th

app l . to rovide ree

· ommons e . · h the ree

- d educators easi n ht terms

creative producers can 13 In doing so, t e a1

"Some R1ghts eserve roviders o onqin

sirnp 1 their rreative work m way<:,

. al scholar Brian Fitzgerald has put 1 •

. l on the ower of copyr1ght owners lp. - • P•• • · · -= - -

M odels such as-Creative Commons re y p . ....: h .. ?. ... .. h � basis fer ::. � , u L .. u, •·•::t .
• , • e- . ht
rrn Ra
. ... her �.. ,..i--
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,,c;ns-cc�'y,
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(Fitzgerald 2006: 222) .

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A N- D .H E O P E N S O U R C E M E • 0
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collaborative initiatives to develop new forms of software, licensed through non-proprietonal

General Purpose Licenses {GPLs), and have been much grounded in the collaborative, DIY

ethos that has underpinned the development of the internet as a socio.:.technological network
2

from its inception. The notion that what Eric Raymond (1998) termed the 'bazaar' of.open

and collaborative practice will triumph over the 'cathedral' of proprietary software and

corporate- or government-controlled initiatives by virtue of superior final product has deep

roots in hacker cultures, notions of the gift economy and theories of social production and

non-pecuniary motivation {Benkler 2006; Vaidhyanathan 20 12) .

Advocates of open source, such as Lessig {2004, 2008), Benkler (2 006) and Suber (2012), have
•

positioned the issue not in terms of Right and Left politics, or capitalism versus anti-capitalism,

but rather in terms of openness and opportunity, and the concept of a new public interest. The

general belief in freely available content is not, as Lessig has pointed out in Free Culture, free

as in 'free beer', or no one having to pay for anything, but free in the sense that creativity

•
 •

11
I N T E R N E T LAW.

POLICY AND

. ,· . . . is respect, belief . . . .

. . s reatened b re . . . . o an 197

. . ,, , Is seen as present· en

rs ge to create onl -

. . . . . . xiv . Yochai . .

We ar e i n t h e m i d s t. o f a pi tc h ed battle over the.spoil fth t .

. s o e r a n s f o r m a t 1 o n to a di g itally

netw or k e d environment a n d th e m t o r rn a n o n econo St k h t

. . . . . . . . . my. a e o d e r s tram t h e older econorn

a re u s i n q leqislation, judicial o p 1 n 1 o n s a n d international t ti · Y

· . . . rea 1 e s to retain t he o ld structure ...

As econormc policy, lettinq yest erda y's w i n n e r s dic t ate th t f , .

. . . . e e r ms o to m orro w s economic

competition is disastrous. As s o cial policy missing a n oppor t u it t · h

, · rn y o e n nc o ur freedom and

(Benkler 2001: 90). · ·

The rise of the op e n sourc e movement has focused attention on different possible internet

futures and the varying layers of control over digital communications networks control

over physical infrastructure and code. as.well.as over content. It sharpened the distinction
-

betwe e n a. poli cy moment that could· reproducethe ·ancien regime of broadcast media, with

its high barriers to entry for new competitors and its sharp demarcation between content

producers and consumers, and an.uncertain-butpotenttatlymore open and democratic future

ba s ed around the collective empowerment of users o f digital media backed by an open and
•

robust public information d o m ai n.

More qenerally, . the op e n source: mov.ement is cha r a cter i s e d by its bias .towards .the
•

new and towards innovation. As Lawrence Lessig put it, 'We a s a society should favor . '•
the

disrupters. I'hey will produce movement toward a ·more etficient, prosperous conomy'
e

(2001: 92). What this produc e s is not Left/Right politics as it has been tr aditionally defined

the state versus the market, the public sphere versus commercialisation, capitalism versus

socialism but rather a shifting field o f more co ntingent alliances that recognises the
•

� · ilable as ossible. to g uarantee

· ft spossible from th e control of the past

that follow-on creators and innovators re main as ee a

(Lessiq 2004: xiv). .

O N L I N E R E S O U R C E S . . .
. . c ber Law h a r v a r d . e d u > L e a d i n g centre for
•

. res on law a n socie Y,

> Resource site for Creative Commons, w ic a

. ducers on how to eve op a

Prov1ded p r a c t i c a l g u i d e l i n e s f o r c o n t e n t pro k' to align

d r > L o n d o n - b a s e d centre see tng

th · ib · es a n d rea ers a r o u n

e 1 n t e r e s ts o f a u t h o r s , publishers, li ran
•

Publishing.