Can a Public-Minded Copyright Deliver a More Democratic Internet?
Bowrey, Kathy, University of New Brunswick Law Journal
In much of the literature about the Internet and digital communications, there is the presumption that a natural association exists between the Internet and democracy. The Internet is assumed to be an empowering institution because of the American idealism and altruism of its "founding fathers"; the computer programmers who linked their technical objective of facilitating access to endless streams of information and people to broader politics of liberation. (1) Liberation and a democratic philosophy are assumed to be inherent in Internet design because of its freedom from centralized management and control. The sentiment is well summed-up in the oft-quoted observation of John Gilmore, a founder of the Electronic Frontier Foundation (EFF), that "the Net interprets censorship as damage and routes around it." (2)
There are probably as many debates about "freedom" and the meaning of "free access" in relation to the Internet as there are about the nature of "democracy" itself. However, the two share a discourse on the importance of a robust civil society and presumptions about freedom of communication. What the Internet empowers can be described as democratic in the sense suggested by Sheldon Wolin:
In my understanding, democracy is a project concerned with the political potentialities of ordinary citizens, that is, with their possibilities for becoming political beings through the self-discovery of common concerns and of modes of action for realising them. (3)
By access to the Internet and its information flows, new possibilities arise. New forms of identity, self-discovery, collective discussion, and engagement become possible; the communications medium facilitates exchanges of ideas and information that influence all other areas of life. To the extent that Internet transactions are unmediated and uncensored, the hope is that all kinds of social relations--global, local, and personal--are suitably engaged and invigorated. Whilst all these relations may not be ordinarily characterized as political in nature, there are political elements in the constitution of all interactions that allow people to come together and pursue common desires.
But if we move beyond the rhetoric of the Internet's potential for empowerment, is it possible to analyze the Internet itself in terms of its democratic credentials? More specifically, what are the sites of activity where others determine the potentialities, political and otherwise, of ordinary citizens?
If the volume of pages in books and law journals is any guide, intellectual property law (IP), and copyright in particular, is the major site for governance of citizens and the Internet. (4) The push for stronger IP laws emerged in the mid-to-late 1990s. Intellectual property became the focus of law and globalization debates, and a site of major revision. The much heralded Internet freedoms, which facilitated fast connections and easy transfer of digital information at low cost, were targeted as a significant economic and cultural problem. The sentiment is well-reflected in the claim by Time Warner CEO Richard Parsons that peer-to-peer technology:
[i]sn't just about a bunch of kids stealing music. It's about an assault on everything that constitutes the cultural expression of our society. If we fail to protect and preserve our intellectual property system, the culture will atrophy. And corporations won't be the only ones hurt. Artists will have no incentive to create. Worst case scenario: The country will end up in a sort of cultural Dark Ages. (5)
Another common claim was that digital technology led to "convergence" of media and markets. The global information economy thus required "harmonization" of copyright laws. The implication was that simplified, generalized minimum standards would lead to "one size fits all" copyright across the globe. Substantial reform was effected by five levels of law-making. …