Who should be the regulators?
What should be regulated?
Where should we draw the line in the great Regulation -v- Freedom of Expression debate?
The newspapers are full of stories about cyberspace making the law an ass – ‘the unpoliceability of the Internet is proverbial. Copyright law is made to look ridiculous by the ease with which digital information can be copied.’ (Peter Popham, Independent on Sunday, Sunday 13 October 1996).
So should we, the lawyers, pack our bags and leave cybertown to the lawless copyright infringers, hackers and purveyors of pornography and other illicit material?
You bet we won’t. In fact, it’s quite easy to project a radically different scenario in which ‘the wild frontier’ of cyberspace becomes a highly regulated, tightly policed cyberzone.
How could this be possible? After all, we know that the Internet was designed to enable it to withstand nuclear attack so that packets of digital data are able to avoid ‘roadblocks’ put in their path along the telecommunication networks.
There are two principal drivers. First, the application of current and planned laws controlling content; second, the technology itself.
Content Regulation
Existing national laws can be used to force Internet Service Providers to control access to the content. Here are just a few current examples.
In the UK, Internet Service Providers who provide access to news groups containing pornographic material could face prosecution under existing UK obscenity laws, charged with being in possession of illegal material – a criminal offence. Similarly, Internet Service Providers who maintain bulletin boards containing copyright infringing material could also face copyright infringement proceedings once they are on notice that the bulletin board contains unauthorised material.
Recently, the Belgian Telecoms Minister announced that Belgium intends to implement measures which would require Internet Access Providers to monitor and report material which featured sex and abuse or the exploitation of children.
The European Trade Union Confederation’s Consumer Unit (Euro-C) recently called for the introduction of a digital quality label in order to regulate internet services.
The problem of junk e-mail is also likely to attract the attention of national regulators.
The current Revision of the 1989 Broadcasting Directive raises the issue of whether on-line services are to be treated as ‘TV programmes’ and so subject to the same stringent controls as broadcasting on issues such as programming quotas, advertising and teleshopping.
And the list goes on!
The Jurisdiction Battle
In fact, the greatest challenge presented by the Internet is legal overkill – competing (and conflicting) jurisdictions. Take the case of a share offering made by a US corporation posted on a server in the US which is seen and responded to by investors in, say, London, Paris and Munich. Whose laws govern the advertising of the offering – US federal and State law, English law, French law etc.? The answer at the moment is all of them! The international community will need to move towards a ‘country of origin’ principle based on internationally agreed minimum standards. In the case of the international share offering, this would mean that compliance with the laws of the country of origin would enable the stock offer to be lawfully marketed on an international basis.
The Technology
The same technology which makes the Internet a huge, international copying machine – digitisation, software and telecommunications networks – also makes it susceptible to control. The audio-visual industries in particular are hard at work to develop common computer hardware and software standards so that copyright works can carry unique identifiers which will be indelibly ‘watermarked’ even if the work moves from digital to analogue form. These systems will enable the copyright owner to identify and so prove ownership of its copyright works in piracy actions.
At the same time, the US is proposing to loosen restrictions on the export of high level encryption technologies. There are also access control systems now available which can prevent further copying of downloaded material. So although you may be able to download a copy of a work on to your PC, it would stop you making digital copies which could be used in another machine. These technological developments will also be supported by legislation which is proposed at the international level. This would impose civil and criminal sanctions for manufacturing or distributing hardware and software which is designed to circumvent copyright protection systems. The European Commission has recently published a Green Paper which sets out to examine how best to protect encrypted television and radio services against illicit reception within the EU.
Taken to an extreme, these systems could be used to prevent access to materials which would otherwise be free of copyright restriction such as copyright materials where the copyright term of protection has expired.
Drawing the Line
So the real debate now taking place about Internet law is where to draw sensible and enforceable lines of demarcation between the various ‘communities of rights holders’ in cyberspace.
The solutions are not easy but they will be found through a process of negotiation and debate between law makers and all interested parties. Here are three elements which underlie all of these:
The global nature of the Internet demands increased harmonisation of national laws, particularly in the fields of copyright, data privacy and other laws governing content.
Service providers have to take the initiative in developing self- regulatory codes.
Copyright and other content laws cannot be enforced without technology. However, care has to be taken not to over-extend the scope of those legal sanctions – otherwise, copyright can become a form of censorship.
This is a fast-moving debate: we shall keep you in touch with developments through our ‘Hot News’ section and further articles on these ‘Features’ pages.