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Bits without Borders

Law, Communications & Transnational Culture Flow in the Digital Age
September 24-25, 2010

Intellectual Property & Communications Law Program
Michigan State University College of Law
East Lansing, Michigan

Conference Prospectus

Whether termed a "Flat Earth" or "Global Village," the planet's shrinking and linking is widely accepted as a fait accompli. While cybertopians may celebrate the emergence of globally networked communities, others fear the "coca-colonization" of culture will impoverish global diversity. Digital communications not only accelerate cultural convergence, but also disrupt existing policies that preserve and nourish local cultures and identities. Some see the technologies that facilitate such transnational exchanges as undermining the authority of the nation state itself.

Look closely, however, and peaks and valleys emerge in the so-called "Flat Earth," and the "Global Village" turns out to be far from global. Rather than passively watch their borders become obsolete, governments at every level subject digital communications to state control–from the explicit censorship of "content" (e.g. internet filtering) to regulation of the "pipes" (e.g. communications protocols) to restrictions on "speakers" (e.g. media ownership laws).

This conference examines the broad cross section of regulatory policies that affect transnational culture flows. From internet governance to intellectual property rights to cultural protectionism, we have inherited a patchwork of piecemeal, often contradictory policies, some squarely aimed at cross-border exchange, others with purely domestic motivations. We examine the choices that governments make in communications law and regulation to facilitate or thwart transnational flows of cultural expression across these legal domains. We hope to provoke insights that transcend these specific areas and to develop a common language by which scholars can identify core values, characterize recurring problems, evaluate tradeoffs, and contribute to more informed decisions.

Topic 1: Code and Culture

Digital communications make possible a seamless web of globally available content, allowing dissidents in Iran and Cuba to be heard and Susan Boyle to become an overnight sensation via a seven minute viral YouTube clip. This borderless flow of data may appear to render national governments irrelevant. Yet, both internet and wireless communications depend on a complex web of technical standards, protocols, interoperability rules, and interconnection agreements, all subject to national control.

The struggle to control these codes and protocols can be found at most every layer of internet communications. Recent changes in the ICANN have seen nation states push for linguistic and cultural diversity in naming conventions and, some fear, greater government control. Meanwhile, Internet Regional Registries have emerged as potential mechanisms of internet governance, even countering national efforts to restrict access, as with Pakistan's infamous "take-down" of YouTube. Fears of governmental interference with internet functioning must therefore be balanced against demands for accountability in internet governance.

We seek greater understanding as to the legal and technical nature of international communications governance: To what extent is national control exerted directly though national law or, indirectly, through international standards bodies? How is government altering the internet's design? Can we characterize government action and motivation as legitimate or harmful? We examine how these technical conflicts will change the internet from an international communications medium to a more regional and culturally specific medium–and the role law plays in this transformation. Most broadly, we attempt to find some normative basis for law to resolve these contested areas.

Topic 2: Filtering Content: Active & Passive

Individuals' internet experiences are filtered in a variety of ways. National governments, such as those of China or Saudi Arabia, filter directly and actively, explicitly blocking content and directly monitoring (through a variety of methods) users' behaviors. The United States and other countries restrict access to certain types of obscene materials while the European countries restrict access to hate speech. Market actors, such as internet service providers, often filter access to content in subtle ways, perhaps as unintentional results of geography and interconnection policies. Search engines actively filter content by relevance and increasingly aim to offer consumers customized internet experiences.

How should law and policy respond to these various types of filtering? As an initial matter, can we define what constitutes "unfiltered" or "unbiased" internet access? Are there significant empirical differences in the way that commonly used search engines shape results? Moving to normative questions, when is it appropriate for nations try to filter content? Should market actors be left to their own devices? Do search engines raise cultural diversity concerns, as suggested by efforts to create a "European Google"? And how should we manage jurisdictional conflicts in cyberspace?

More generally, "internet freedom" has recently been elevated to an explicit aim of US foreign policy. Is this an aspiration that can realistically be pursued through law? If so, what law? These questions cut across both domestic and international systems and implicate legal regimes ranging from international human rights to world trade to communications and e-commerce regulation. Are some regulatory strategies more promising than others?

Topic 3: Diversity in Digital Global Age

One of the thorniest issues in international trade remains the regulation of culture. Concern over the dominance of American popular culture has led to widespread use of domestic content quotas, subsidies, and other regulatory measures, all justified in the name of cultural diversity. The extent to which such government interventions can be justified under free trade rules remains contested, however. Efforts to negotiate a putative "cultural exception" that would legitimize trade discrimination in the cultural marketplace have remained deadlocked for decades.

The emergence and widespread adoption of digital communication technologies to produce and disseminate culture throws into confusion the existing parameters of this debate. First, such technologies undermine existing regulatory tools to protect cultural diversity. In particular, the move toward proliferating channel capacity combined with "on demand" broadcasting makes content quotas essentially meaningless. Second, continuing innovation in e-commerce platforms for cultural products poses definitional challenges for existing legal rules by blurring the basic goods-services distinction and confounding established categories used to define sectoral trade commitments.

Finally, on a normative level, the transformative effects of digital technologies pose ambiguous implications for diversity. Cultural optimists argue that the lowered costs of entry to produce and distribute cultural content will solve the diversity problem by ushering in a cornucopia of decentralized and/or user-generated expression, leveling the playing field for developing countries and empowering markets built upon the global Long Tail of consumer demand. By contrast, cultural pessimists see digital technologies as a means for commercial culture industries to intensify their dominance by extending their reach further and deeper into global mindshare at the expense of indigenous values. Developing countries also worry that the "digital divide" will entrench their existing disadvantage in global cultural markets. While extrapolating into the future is risky, one thing seems certain: The outcome of these competing trends will shape the future of cultural protectionism and cast a long shadow over the "trade and culture" debate.

Topic 4: Intellectual Property and Diversity

The relationship between intellectual property rights (IPR) and the diversity of global cultural expression remains ambiguous. In theory, copyright seeks to increase diversity of expression by creating a decentralized market for cultural dissemination. Proponents have long argued that lack of copyright enforcement harms diversity by depressing indigenous content industries. Indeed, the spread of internet filesharing services has made strange bedfellows, with European cultural protectionists aligning with Hollywood studios to crack down on trafficking of pirated content. However, critics contend that overly strong copyrights reinforce the dominance of Big Media conglomerates and distort the market in favor of generic "blockbuster" offerings. Commentators have called for diversity values to be weighed more explicitly in copyright doctrine.

The territorially fragmented nature of IP protection further complicates assessments of the interplay between diversity and IPR. From regulation of filesharing to internet keyword advertising, diverging substantive and procedural norms can affect the direction and velocity of cross-border culture flows on many levels. Recent developments from the Google Book Settlement to emerging proposals for "flat rate" content licenses have highlighted the transnational dimensions of the "IP & diversity" debate.

Finally, the effect of copyright on global diversity has been much contested from a development standpoint. Developing nations have denounced the imposition of global IP norms as an act of legal and cultural imperialism designed to entrench the hegemony of Western culture industries. Calling for a rebalancing of the global IP regime, advocates for the Global South contemplate both a weakening of "Western" IP regimes through compulsory and/or "open" licenses as well as the recognition of new property rights in traditional culture from indigenous expression ("folklore") to artisanal production. Yet, overly rigid protection may stifle development. Global diversity may hinge on finding flexible forms of protection that enable developing countries to nurture indigenous creative industries.

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