New paper on Net Neutrality, in Journal of Internet Law

Regulating the Medium: Reactions to Network Neutrality in the European Union and Canada (2011) 14(8) Journal of Internet Law 3.

In this contribution on network neutrality, the expression-related elements of this issue are considered, including a case study of Ireland, highlighting the broad powers enjoyed by ISPs, and discussing whether the problem is a genuine one. While noting that the matter has been the subject of various publications by a sizable number of US scholars, space is then given to comparing the state of the debate in Europe, Canada, and the United States, drawing on principles of telecommunications law. It is argued that the link between telecommunications and media regulation is at the heart of the net neutrality debates in Canada and (to a lesser extent) the European Union, and that the non-applicability of certain US doctrines in these jurisdictions (due to different market conditions and the established role of competition law) does not mean that regulatory or legislative action is unnecessary. Finally, it is contended that the consideration of net neutrality in the context of important social and political debates regarding speech, plurality, and innovation is a better approach than one focused on ex post identification of the most egregious examples of discriminatory practices.

Download it on SSRN; other papers available here.

Internet Rights

I had the privilege of participating in a round-table discussion (without the table) at UCL on October 20th. The event was organised by the very active Student Human Rights Programme and chaired on the day by Ben Allgrove of Baker & McKenzie. The topic was ‘Internet and E-Rights: challenges and perspectives’, and you can read the full report here and a brief note on the UEA Law School website here.

My contribution was on the subject of network neutrality and its relationship with the right to communicate. It drew on some of the material appearing in a future issue of the Journal of Internet Law (more on that soon), as well as the discussion of the right to communicate explored in my doctoral thesis. I argued that there was a need to consider the overall legal environment for ISPs, particularly the relationship between immunity as a mere conduit and the degree of neutrality regarding content, and discussed the various reviews in progress in the UK, EU and US, criticising the first two as lacking in a full appreciation of non-economic issues including fundamental rights. I was rewarded with some very interesting questions, including the method(s) of financing broadband expansion and the case for prioritising particular forms of traffic.

The theme of rights was introduced by Andrew Murray (website), who has published his suggested ‘Bill of Rights’ on his blog. This is a very interesting contribution and comes at a time where – at the Internet Governance Forum and elsewhere – the idea of drafting or amending rights is very much back on the agenda. Some (but not all) of his suggestions do related to the net neutrality debate and his draft can serve as the basis for a very interesting discussion, including on whether there is a need for ‘Internet-specific’ instruments as well as how any such rights would be monitored and enforced. In his talk, Andrew also assessed a number of current proposals for Internet rights, such as that of the proposed Bill of Digital Rights in Brazil.

The other two presentations, like mine, looked at a single topic rather than the overall picture about rights. Emily Laidlaw‘s talk on Google started with a summary of Google’s current position in the UK and elsewhere, followed by an overview of the power and potential for manipulation of search results. She suggested that there is a need to consider the social responsibilities of search engines as gatekeepers and also the need for public forum, freedom of expression and regulatory analyses of search. She has also blogged about the event here and even posted her slides. Lawyer Stratis Camatsos (Pappas & Associates, Brussels) discussed social networking in the context of privacy and data protection, suggesting that further work was needed to ensure that the activities of social networking sites are compliant with EU law in this regard, but also discussing (in the Q&A) whether the current system of data protection law was itself appropriate in the light of user practices and habits expressed through ‘sharing’.

I did enjoy the event, and the wide range of questions from the audience. For me, it highlighted the mature stage at which cyberlaw/Internet law has arrived, but also the number of issues yet to be resolved or dealt with which are still quite ‘fundamental’, whether rights-based or otherwise. It was also an opportunity to consider the relationship between specific debates of Internet law and policy and other current themes in international law and in human rights. Andrew Murray commented that the event was typically ‘international’, given the panel (an Australian chair, and speakers from Scotland, Ireland, Canada and Greece), while said chair Ben Allgrove also pointed out the focus of all speakers on beneficial forms of ‘regulation’, in contrast with other views (past and present) that might be more suspicious (often with good cause) of regulatory intervention.

Papers from BILETA 2010: Scharf, Marsden, Jones and more

The first bunch of papers from last spring’s British & Irish Law, Education & Technology Association (BILETA) conference in Vienna have just appeared in the European Journal of Law and Technology. The EJLT, for those that haven’t come across it yet, is the successor to the long-running Warwick-based Journal of Information, Law & Technology (JILT). The current issue, Volume 1 No. 2, contains revised versions of papers first circulated at the conference.

Of particular interest to me is the paper by Nick Scharf, a doctoral student at the UEA Law School, supervised by Prof. Chris Wadlow with assistance from myself. His paper on Digital Rights Management and Fair Use considers recent developments in relation to DRM in the context of the various legal and technical developments that have brought us to the current position, and he argues that modern DRM is network- rather than just content-based.

I also enjoyed the papers by Marsden (which I saw at the conference) and Jones (which I didn’t). Jones (Intellectual Property Reform for the Internet Generation) looks at current debates in copyright reform and pays particular attention to the actions of and future for the record labels and the recording industry. Marsden (European Law and Regulation of Mobile Net Neutrality) adds to his work on net neutrality more generally by considering the position of mobile (or in US terms ‘wireless’) ISPs regarding the great neutrality debate. Despite the title and the obvious appeal of the neutrality question, it’s also a very interesting take on the general business model and regulatory climate for mobile networks per se.

Self-promotion alert: a paper based on my own BILETA presentation (on computer games) appears shortly in the Entertainment Law Review – I’ve approved the proofs and it’s due out in volume 21(8), between now and the end of the year.

When We Talk About Gikii…

So.  As I said, I only managed to make it to the second day of the fifth edition of Gikii, but it was a very full day, and shows the strength of the concept (there is definitely an emerging Gikii aesthetic!) and the wide range of contributors.  I should say that my immediate impressions and various links are on my Twitter feed, and the tag gikii has lots of other views.  This post has some remarks on my own session, some shorter remarks on the session I chaired, and some even shorter remarks on the final session of the day.  Don’t forget that you can download most of the presentations from both days at this link.

Having arrived from Dublin the night before as part of a triangular journey (Stansted-Dublin, Dublin-Edinburgh, Edinburgh-Stansted), I was first up on Tuesday morning with my own presentation.  This time around, my topic was What We Talk About When We Talk About Google (or WWTAWWTAG as it is in my notes).  The idea for this presentation came from earlier (and as yet, incomplete) work on the Google Books case, and how it seemed to come at a time when Google’s treatment by politicians, NGOs and academics was in a state of flux.  Google is also involved in some of the most controversial media and technology policy issues on the table right now, everything from net neutrality to privacy.  So it seemed interesting to dig a little deeper. My presentation (which you can download here as PDF) was therefore an attempt to explore the question in the title in a number of different ways.  For example, I looked at the ways in which both courts and parliamentarians in the UK refer to Google – and compared that with a sample of news coverage, finding not just some differences (with the parliamentary discussion still focusing on Google as a general resource for search) but also some interesting internal differences within the media (in this sample, the Daily Mail / Mail on Sunday got very upset about Google Street View).  I also illustrated the different faces of Google through various parodies/cartoons produced by others, and talked about the various friends and allies that are found in Google’s public policy activities, and the result in the Viacom case.  I do hope to do some more detailed work on this, as it was more interesting (to me, at least) than I had thought.  Curiously, it also drew quite a lot of good laughs, with Ray Corrigan giving it a joint comedy award.  This is not my usual territory.  I don’t think my students would write ‘stand-up comedian’ on their feedback forms.

Luckily, the following presenter, Trevor Callaghan, had genuine claim to the comedy tag, with a discussion of Google and social networking.  It was a really through and unquestionably unprintable exploration of the topic, made more lively by the use of Prezi and diversions into broader issues of data, identity and privacy.  It’s really interesting how he was able to get a sense of what Facebook’s business and cultural models are, and how they differ from other players often grouped alongside them.  The final presentation in that morning session was another Gikii serial offender, Andrea Matwyshyn.  Her presentation looked at issues of authorised access, with a particular focus on the US Computer Fraud and Abuse Act (CFAA) and similar legislation.  Her key arguments were the divisions between criminal and civil issues (in particular, the role of contracts and terms of service), and she mentioned a number of key US decisions (such as the Lori Drew case and v Verio) and the problems stemming from then, including a pretty obvious circuit split (e.g. the difference between IAC v Citrin and LVRC v Brekka).  She questioned the purpose of the CFAA and other legislation and whether it was meeting its aims.

The second session had yours truly in the chair, and it included a range of papers on the broad theme of intellectual property:

  • Steven Hetcher, “Conceptual Art, Found Art, Ephemeral Art, and Non-Art: Challenges to Copyright’s Relevance“.  Steven’s talk (from a US point of view) considered the ‘discrimination’ against forms of contemporary art that, being ‘unfixed’, are not within the common concept of copyright law as based on fixation.  In some cases, the work is the process, with no fixed object … although if unfixed art is to be protected, does this raise questions of artistic merit as an alternative mechanism for delimiting the reach of copyright?  With a wide range of slides (including a Damien Hirst shark sighting), there was also time to talk about Christopher Lowry’s work as discussed in Satava v Lowry, a 2003 case.
  • Gaia Bernstein, “Disseminating Technologies“.  This paper was an attempt to go beyond the rhetoric of ‘IP wars’ and to discuss the acceptance and dissemination of new technologies.  It builds on the author’s recently-publisehd work on innovation (e.g. here).  She traced the differences between approaches to technology in the cases of copyright and patent, and the interaction of both with competition.  She put forward an argument that the user’s role was not given the treatment it deserves, and subsequently pointed to a number of situations of market failures where (due to network effects or the importance of time) specific intervention was necessary.  Really interesting stuff, and bonus points for talking about Minitel.
  • Christopher Lever, “Netizen Kane: The Death of Journalism, Artificial Intelligence & Fair Use/Dealing“. The third paper used some very creative metaphors and images that were both botanical and big-screen (Citizen Kane), with an introductory discussion of the future of newspapers and journalism and the relevance of fair use and fair dealing giving way to a critique of the failings of DRM and a thorough analysis of the work of Ozlem Uzuner on digital fingerprinting and unique expression.
  • Chamu Kappuswamy, “Dancing on thin ice – Discussions on traditional cultural expression (TCE) at WIPO”.  The final presentation in a very busy session.  Her presentation provoked a lively online and offline discussion on what constitutes TCE in a British or Scottish context, but also offered some valuable points on differences (even where in apparent agreement) between the approaches of UNESCO and WIPO and between traditional knowledge (often patent-related) and cultural expression (often copyright-related), and the links between international legal efforts regarding TCE, folklore, and intangible heritage.

The afternoon session included an even wider range of presentations. Simon Bradshaw & Hugh Hancock talked about (and created live before our very eyes) the prospect of interesting legal issues pertaining to machinima, suggesting that the ease with which this type of audiovisual work can be created will continue to be a fertile one for legal action and academic analysis (not least the prospect of issues around new provisions in the Crime & Policing Act 2009).  Ren Reynolds (with Melissa de Zwart, who wasn’t able to join us in person) talked about online games, statutory regulation of such in Korea, analogies (and case law) from physical sports like rugby, and the relationship between the rules of the game and other laws and rules, and the contract/license distinction.  The last presentations zoomed out and looked at  developments across disciplines: Abbe Brown (presentation here) reviewed the various issues, forces and actors in Internet governance and international cooperation (highlighting different approaches and parallel debates), while Michael Dizon (presentation here) presented a post-Lessig/(Andrew)Murray analysis of ‘the network is the law’.

Also, we had cake.  And that’s it about Gikii for this year.  Don’t forget to download the presentations

Fit for the bin

Many of those who write about the regulation of media (myself included) get very excited about questions of access, particularly in relation to new media, with things like positioning on an electronic programming guide (EPG) or the ongoing net neutrality debate getting lots of coverage, at least in academic circles to begin with. I’m reminded by a story on the Press Gazette’s website, though, that physical ‘access’ questions are still very important as a matter of the media industries. Indeed, this particular version of the question is a relatively new one, and it’s quite nice that new topics like this continue to pop up.

The article in question is about the Evening Standard, which is in the process of switching from cover price to free distribution, reaching what is referred to as a short-term deal for the use of the ‘bins’ in London railway stations (mainline stations like Waterloo, Euston and Liverpool Street, not Tube). These familiar structures are used for the Metro newspaper in the mornings, and will now contain free Standards (instead of the much-missed London Paper) in the evening. They’re apparently owned by Network Rail (which operates these stations) and have been the subject of a tendering process in the past, according to this 2006 Guardian article (written in the olden times before the now-abandoned thelondonpaper hit the streets). As far as I know, the Evening Standard has an existing separate deal for paper-sellers setting up inside Network Rail-owned stations, but presumably the bins are important as as part of the new model, they can simply stack piles of papers there and allow them to be picked up by customers as they pass through the stations.

There’s a lot of law here, too; one of the most interesting ECJ decisions is about a newspaper distribution network (Bronner v Mediaprint, which I have cited on a number of occasions, though there’s a lot more work that could be done on that topic), and the London bins (which were first the subject of an exclusive agreement with Associated Newspapers, who ran and run the Metro paper in London) have been the subject of an OFT investigation between 2003 and 2006 (see here). Indeed, the resolution of the OFT involvement was to allow others to bid for the ‘afternoon’ slot. I’d rather see a range of newspapers available from the bins, especially as the bins are in many cases provided under the auspices of public bodies (Transport for London) or quasi-public bodies (Network Rail). I appreciate that the distribution deals are useful revenue-generators, but there are plenty of opportunities in railway stations to monetise the eyeballs (or insert your own favourite marketing prhase), and there may well be a way to raise useful revenue while also facilitating a range of newspapers. That is, if the free newspapers survive! The other dimension, of course, is that the Standard is no longer owned by the same company that owns the London version of Metro; if it was, we’d probably be back to square one. Associated Newspapers continue to publish London Lite (without access to the station facilities), so there are interesting times ahead.