Designing a Coherent Framework for the Regulation of Internet Content
Against the backdrop of transforming patterns of content production, dissemination and use, as well as the changed governance landscape in the Internet age, this paper seeks to emphasize the point that media can no longer be taken as a self-contained policy domain reserved for the nation state. It raises awareness of the necessity for a broader understanding of the relevant societal and governance processes and sketches the new challenge to ensure a coherent regulatory framework for Internet content. In this sense, the paper seeks to address the question of appropriate forms of regulating Internet content and pleads for a recalibrated action in the domain of global media law and policy, in particular with regard to network neutrality and Internet filtering.
Global Trends in Online Copyright Enforcement: A Non-Neutral Role for Network Intermediaries?
This article examines a worldwide shift in laws, policies, and practices pertaining to intermediaries’ role in online copyright enforcement. We use a comparative methodology to expose an emerging trend in jurisdictions, including Australia, Belgium, Canada, China, the European Union, France, Germany, Japan, New Zealand, Singapore, South Korea, the United Kingdom, and the United States. Previously, the worldwide standard approach to issues of Internet service provider liability was to require carriers and hosts to behave passively until becoming aware of copyright-infringing activities on their networks, at which time a reaction typically involving the takedown of allegedly infringing content was required. Very recent events in several jurisdictions demonstrate a new trend away from a passive-reactive approach toward an active-preventative approach instead. Government policies, voluntary practices, legislative enactments, and judicial rulings are all contributing to this shift in the rules applicable to online intermediaries. One reason for the shift is increased pressure from rights holders on legislators and policymakers to make intermediaries play a greater role in online copyright enforcement. Another less obvious reason is that intermediaries’ and rights-holders’ interests are aligning. While rights holders are concerned about copyright enforcement and intermediaries are concerned about network management, the result is a mutual interest in content filtering or traffic shaping. The danger highlighted by this article is that policymakers might inadvertently craft inappropriate legal and regulatory responses by failing to appreciate the divergent motivations behind, and implications following, this trend. To help avoid those pitfalls, this article exposes a new global trend in the area of online copyright enforcement, and it suggests increased coordination among policymakers and affected stakeholders as an appropriate response.
New Directions for U.S. Telecommunications Regulation? The Comcast Decision and the ‘Third Way’
A recent U.S. Court of Appeals decision, Comcast vs. FCC, calls into question the FCC’s authority to implement two of the most important policies of the Obama Administration, and of the Federal Communications Commission under the leadership of Chairman Julius Genachowski:• The implementation of a formal, rule-based regime that would institutionalise protection of U.S. consumers against deviations from the principle of network neutrality; and• The expansion of broadband coverage in the United States. This court decision has effectively created a crisis for U.S. telecommunications regulatory policy, but the implications warrant careful analysis. Is Comcast vs. FCC really the end of the world, or does it instead represent a chance for a new beginning?Following Comcast vs. FCC, there have been efforts in the U.S. Congress to change U.S. law to ensure that the FCC has the necessary authority to implement these programs. Meanwhile, Chairman Genachowski has proposed a sweeping re-thinking of the regulatory policy of the past ten years, the Third Way, that seeks to strengthen the underpinnings of the FCC’s authority under existing law. Either approach represents a major re-thinking of current policy, and either is likely to have unforeseen consequences. This paper seeks to elucidate the implications of such a change.