Global Cultural Law and Policy and the Internet: A Tale of Parallel Worlds

Mira Burri
University of Bern

Abstract

The article provides a comparison between the conventional venues of cultural policy-making, such as the World Trade Organization and the United Nations Educational, Scientific and Cultural Organization, and the newly emerged fora of global Internet governance. It juxtaposes the different actors, levels of legalization and institutionalization, the different decision-making mechanisms, the different framing of cultural diversity issues and the broader rhetorical and policy contexts. The article exposes the existing disconnect between these and ultimately reveals the ongoing marginalization of cultural concerns at the global level, as well as the inability of states as policy entrepreneurs to react to the changing regulatory environment.

DOI: 10.18278/aia.1.1.8

    1. 1. Introductory Remarks

Global cultural policies have been inspired by two theoretical underpinnings. The first is that of cultural nationalism, which essentially seeks to protect national culture, as well as the space available to national policymakers to craft their present and future interventions. Cultural internationalism, on the other hand, has been an expression of the cooperative effort of the international community to protect components of common human culture, of the past and present, in times of war and peace (Merryman 1986). As a result of these efforts, which span over decades, we have witnessed the emergence of a vast and complex network of treaties and institutions of international cultural law (e.g. Forrest 2010).

Globalization has exacerbated this complexity, as cultural nationalism became both more pronounced and wider spread across different policy domains. The inherent duality of cultural goods and services as such that have economic value and can be traded, and are at the same time “vehicles of identity, values and meaning”, meant that both economic and non-economic interests are constantly affected as they flow across borders. The economic rationales for cooperation have in general been much stronger, however, and have led to higher levels of institutionalization and more binding legal norms in comparison to the broad area of non-economic concerns. The World Trade Organization (WTO) is an expression of this development.

In the following, we briefly look at the evolution of the cultural protectionism discourse, in particular in the matrix of trade and culture, as history lays particularly heavily on the global cultural policy discourse and we need to understand its origins. This helps us to contrast “old” cultural policies and newer regulatory fields having effect on culture and expose the existing policy mismatch, in both framing and actions taken.

In the previous work, our attention has been primarily devoted to the inadequacy of the global cultural toolkits as applied in the digital space as they all stem from an era of analog and offline media (Burri 2012, 2014). Exposing the intrinsic “stickiness” of cultural policies, we were also eager to show that there are a number of possibilities to mobilize the affordances of digital technologies to achieve the promulgated cultural ends in better and more efficient ways. While this line of argumentation is still valid and the academic debate is important, as it may lead to some, albeit incremental, adjustment (Guèvremont et al. 2013; Rioux et al. 2015), the goal of this article is somewhat different. It offers an enquiry into the development of international law through multiple global domains affecting cultural policies. It seeks to reveal the profound disconnect between these policy fields—in particular by looking at trade, culture, and Internet governance—which are critical in shaping the contemporary information and communication environment, where the proclaimed goal of cultural diversity is to be achieved. The article is one of the few enquiries that provide a comparison between the conventional venues of cultural policymaking, such as the WTO and the United Nations Educational, Scientific and Cultural Organization (UNESCO), and the newly emerged fora of global Internet governance. It counterposes the different actors, levels of legalization and institutionalization, the different decision-making mechanisms, the different framing of diversity issues, and the broader rhetorical and policy contexts. It shows ultimately the ongoing marginalization of cultural concerns at the global level and the inability of states as policy entrepreneurs to react to the changing regulatory environment.

    1. 2. Lessons Learnt from the Global Cultural Diversity Discourse

A look at the trade and culture debate may be useful for the purposes of our discussion for a few reasons. First, it allows us to trace the narrative of cultural diversity policies over time and to explore the interaction between cultural nationalism and cultural internationalism. This sets the policy and legal scene before we introduce the new variable—that of the Internet as a powerful force of transformation. In the end of this section, it is our purpose to draw conclusions about the nature of global cultural policy in its intersection with trade, about the key interests and actors in contestation, and whether they are likely to change—endogenously as a matter of natural policy adaptation, and/or exogenously—under the influence of external factors, such as the Internet.

      1. 2.1. Culture and the WTO

The Convention on the Protection and the Promotion of the Diversity of Cultural Expressions adopted in 2005 under the auspices of the UNESCO was the international act that positioned the notion of cultural diversity as central in global cultural law and policy, and created a legal binding mechanism for its protection and promotion. The real narrative behind the prominence of cultural diversity as a distinct policy objective is much longer, however. It goes back to the “trade versus culture” clash during the Uruguay Round of trade negotiations (1986-1994). During these talks, which ultimately led to the establishment of the WTO, several countries, with the European Union (EU) and Canada at the forefront, fought the so-called “exception culturelle” battle. As the name suggests, it aimed at exempting any product or service that is culture related from the rules of the negotiated WTO Agreements. The prime focus of the campaign was on the exclusion of “audiovisual services”—which is the trade law jargon for films, television programs, video, and sound recordings. These were conventionally highly protected sectors and at the same time under significant competition from abroad—especially from the U.S. entertainment industry, which is one of the key reasons why the issue was brought to the WTO in the first place.

Eventually the “cultural exception” agenda only partly attained its goals, as no services sector was excluded from the scope of the WTO rules. At the same time, however, a number of flexibilities were built into the law of the WTO, in particular into the General Agreement on Trade in Services (GATS), allowing few or no commitments—including for audiovisual services. So, in effect was the wiggle-room for states to adopt measures in the media sector fully preserved.

Despite this solution, the trade versus culture conflict was not settled but remained politically charged. Importantly for our discussion, the profound changes in the media landscape of the last two decades, triggered above all by the advent and wide spread of the Internet, have led to no palpable change in positions. The majority of WTO Members are still adamant in preserving the status quo and not prepared to give up their “all-or-nothing” approach and enter commitments, even in domains that have long been deregulated at the domestic level. Audiovisual services is likely to remain the least committed for services sector (Roy 2005).

While keeping the status quo is widely politically supported, practically with the U.S. only opposing it, it may come at a cost. In particular, the trade versus culture deadlock appears to have negative consequences for the capacity of the WTO to address trade in the Internet age—not so much because of a failure in the organization’s legal architecture and mechanisms but much more so because of lack of political agreement (Burri and Cottier 2012; Burri 2015). As the WTO Programme on Electronic Commerce has shown, while all Members recognize the importance of digital trade and the great economic gains to be reaped from it, there is no consensus on how to solve a number of concrete issues. Particularly contentious are the classification issues between goods and services and within different categories of services, which would trigger different levels of liberalization and commitments made by the WTO Members (Wunsch-Vincent 2006; Weber and Burri 2012; Burri 2015), and potentially affect the now available wiggle-room for cultural policy measures.

The spillovers of the trade versus culture dilemma cause profound legal uncertainty and upset the potency of the WTO to react in a forward looking manner to the deep changes in international trade caused by digital technologies (Chander 2013), and hinder linkages to global Internet governance institutions and debates. This also, and only naturally so, leads to forum shopping and a move (particularly driven by the United States) to bilateral or regional venues, the impact of which may be precarious, if not to say detrimental, to achieving any public interest objectives (Wunsch-Vincent and Hold 2012; Burri 2015).

The cultural proponents have organized their efforts differently and sought new institutional solutions outside the WTO framework—through the adoption of the UNESCO Convention on Cultural Diversity in 2005.

      1. 2.2. The UNESCO Convention on Cultural Diversity

The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions carried with it a great promise for change—as a successful cooperative effort of the international community and one of the few in the domain of culture of binding nature. It seemed, at least initially, that the UNESCO Convention can change the substance and the dynamic of global cultural law and policy by making the shift from cultural nationalism to cultural internationalism.

Yet, this hope has been dashed (Acheson and Maule 2004; Burri 2010). With the benefit of hindsight and considering the complexities in the matrix of trade, culture, media, intellectual property, and human rights (Helfer and Austin 2011) and the starkly different sensibilities of the negotiating parties (Craufurd Smith 2007; Pauwels, Loisen, and Donders 2006), the failure of this ambitious project is understandable. Now, 10 years after the adoption of the 2005 UNESCO Convention, not only have its original flaws become apparent but it is also clear that they will not be remedied by subsequent practice of the Convention’s institutions or its parties.

The UNESCO Convention’s weak binding power and its substantive and normative incompleteness involve no real advance toward the goal of sustaining a diverse cultural environment but rather approximate a political declaration (Craufurd Smith 2007; Burri 2010a). There has been no subsequent legal or policy reform. On the one hand, the Convention’s own implementation into the law of the Contracting Parties is of modest significance (Burri 2013, 2014). On the other hand, the UNESCO Convention does not alter the rights and obligations of its parties under the WTO—a situation that has been confirmed by the 2009 China—Publications and Audiovisual Products case. So, both within national bounds and at the international level, the Convention has had low impact.

      1. 2.3. The State of Global Cultural Law and Policy

To sum up, although the discourse on trade and culture and on cultural diversity has a long history and has been politically strongly boosted (Sauvé and Steinfatt 2000; Slotin 2002; Singh 2007; Pager 2011), the real effects are few and the guidance on what is cultural diversity and how it is to be attained is limited. Much of what is done as a matter of international cultural policy, at least as contemporary culture is concerned, is to counteract to the developments in the field of international trade law—because of its high level of legalization and its impact on the cultural industries. What has been the bottom-line of all international cultural measures in this sense is the focus on carving out policy space for the sovereign nation states. Cultural protectionism is thus permitted. It is also noteworthy that it is focused almost exclusively on media, on content, and operationalized through a set of conventional trade barriers, such as quotas and subsidies.

It is equally important to note that the entrenched positions of the United States and the EU as major negotiating powers have not changed much over time, although the charge of the trade versus culture clash has somewhat subsided during the current Doha round. The United States has been much more pragmatic about it however and refocused its efforts on an overall reduction of market barriers and above all on ensuring free digital trade, while protecting the property rights of the U.S. copyright industries—and has achieved this mostly through preferential trade agreements.

The position of the EU is in comparison much more path-dependent, as well as intractable. The Doha Round negotiations are one good example of EU’s non-committal practice. More recent ones also show that the EU is unlikely to adjust its position even when negotiating in other venues and with few partners (Burri 2015a). So, for instance, the shortly signed Comprehensive Economic Trade Agreement (CETA) with Canada entirely excludes audiovisual services from its scope. In the context of the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP), as presently negotiated between the EU and the United States, the audiovisual services sector has too been taken out of the negotiating mandate of the Commission under considerable pressure of the European Parliament—in order to safeguard the “cultural exception” and protect the cultural and linguistic diversity of the EU countries.

Finally, it should be stressed that these global cultural policy efforts have been disconnected from efforts to promote cultural rights as belonging to individuals. There is lip service paid to human rights and fundamental freedoms but specific cultural rights, such as access to education or use of language of choice, are for instance not part of the UNESCO Convention. Furthermore, while the Convention does mention indigenous peoples and traditional cultural expressions few times, the relevant provisions remain declarative in nature and again address not the rights of the indigenous people themselves but those of the states whose territory is affected. Intellectual property rights and the related very pertinent issue of access to content is also curiously missing from the UNESCO cultural diversity debates—arguably because of the high stakes involved and the danger of political blockages (Broude 2007; Burri 2010a).

A feature of all these cultural policies, as well as of most of the presently applied national instruments, whatever their other flaws (and there are a few) (Burri 2010a, 2013b), that is of particular relevance for our discussion is that they have emerged under the conditions of analog/offline media. We are however now faced with a situation that is “significantly different from the audiovisual sector of the Uruguay Round when negotiations focused primarily on film production, film distribution, and terrestrial broadcasting of audiovisual goods and services” (WTO 2000) and that is even starkly different from the conditions prevailing at the outset of the Doha Round in 2001, when the Internet was in its infancy and its implications were largely unknown. There is thus a mismatch between the formulated policy and the actual regulatory environment.

This naturally has serious implications for the applied cultural policy toolkits, as they may be inefficient or completely misplaced, because they neither reflect the transformed processes of cultural creation, distribution, and consumption, nor the broader changes in society spurred by digitization and the Internet in particular that have led to a decidedly different information and communication environment (Benkler 2006:2).

What has also changed are the linkages between the relatively narrow policy field of regulating cultural content production, distribution and use, and other regulatory domains that were previously developing in isolation (for instance, telecommunications) or simply did not exist (for instance, Internet governance). These missing links and their implications for the present and future of global cultural policy are what this article seeks to thematize.

    1. 3. The Changed (and Changing) Landscape of Contemporary Cultural Governance

The Internet and the underlying processes of digitization and convergence have definitely extended the scope of cultural governance in the past three decades and these extensions have become critical for the achievement of the fundamental cultural policy objectives. Digitization has enabled the expression of all content (be it audio, text, still, or moving images) as binary digits and has freed information from the tangible medium, making it networkable and easy to manipulate (Flew 2008). It has also triggered the erosion of the previously distinct boundaries between the media, telecommunications, and the information technology (IT) sectors, leading to a convergence of their products, services, and companies (Burri 2007; Flew 2012). Because of these processes, when examining contemporary cultural governance, one ought to consider all layers of the so-called “communications model”, as regulatory choices, such as for instance with regard to technical standard-setting define access conditions for content and thus have repercussions for the freedom of speech and broader cultural processes.

This layered communications model is well established in the IT literature (Wu 1999; Benkler 2000; Werbach 2002; Goodman and Chen 2010) and helpfully depicts contemporary communication architecture along three layers: (i) physical layer consisting of the network plus the hardware attached as the fundament for information flows; (ii) logical layer consisting of software, applications, and protocols that as a whole enable connectivity and the performance of communication tasks; and (iii) content layer, where the actual human-readable messages are placed.

In addition to this “enlarged” cultural governance landscape, it should be underscored that digital technologies have also had a profound impact on governance forms overall. They now increasingly depart from the conventional notion of law and shift toward more complex, heterogeneous, and uncoordinated mechanisms, as illustrated by the institutions and actors in Internet governance that we discuss in the next section. One area that is also new and can be very important is the role of technology as a means of control, existing on top of law or beyond law’s scope (Lessig 1999; Burri 2013a).

In the next section, we look at Internet governance as the new site of global cultural governance, as broadly conceived. The purpose of this exercise is on the one hand to reveal the relevance of choices made in the context of Internet governance to cultural processes as the object of cultural policy; on the other hand, we want to expose the radical departure from conventional global cultural policy and law, the missing links and the fundamental differences in approach between the two areas.

    1. 4. Internet Governance

The domain of Internet governance is the youngest policy domain with implications for cultural practices and for cultural policies. This is due not only to the novelty of digital technologies but also to the associated unorthodox processes of regime construction, which are still evolving (Mueller, Mathiason, and Klein 2007). In contrast to the conventional regulatory domains, which despite different modalities of regulation at different levels of governance, have remained clustered around sovereign states and forms of cooperation and coordination between sovereign states, the field of Internet governance is populated with multiple non-state-led forms of norm-making. This is not to say that Internet governance is a “government-free zone” (Barlow 1996). The early rhetoric of cyberspace independence (Johnson and Post 1996) has long been forgotten, and indeed, never reflected the reality of existing and increasing state intervention online (Keohane and Nye 1998; Goldsmith 1998; Goldsmith and Wu 2006).

At the same time, we cannot simply state that Internet governance is “business as usual”. As Orly Lobel has argued, the Internet does change the landscape upon which law operates, for at least three reasons: (i) on the one hand, the Internet enables citizens to become active users of information and to engage in cultural production; (ii) on the other hand, the Internet provides an experimental environment for self-governance and new non-governmental standard-setting institutions; (iii) finally, at the meta-system level, the Internet supports the shift from the classic regulatory to the distributed governance model and engages new venues for political and legal activities (Lobel 2004; Singh 2013).

In the context of our discussion, we are particularly interested in the latter and how the institutions and processes of global Internet governance may interfere with present and future cultural policy strategies. Choices made in the domain of Internet governance matter for culture (at least) in two ways. In the first sense, the control over and the policy decisions made with regard to the critical Internet resources, such as domain names and IP addresses, define how information will flow over the Internet—for instance, whether and how it can be discriminated, how and under what conditions is access to the Internet system granted or denied (deNardis 2014). As one concrete example illustrating the link between cultural and Internet governance, one can take the introduction of the so-called “internationalized domain names” or the opening up of the generic top level domain names beyond the usual .com, .net, .edu, etc.—these have been policy choices that have serious implications, amongst others, on language and cultural diversity, on indigenous group, and community identities (EUrid-UNESCO 2012). In the second broader sense of domain inter-linkages, it is critical to consider how the system of global Internet governance is evolving and whether certain key cultural policy rationales—such as, for instance, freedom of speech fundamentals or identification of the state as the core unit to protect and promote cultural rights, are likely to flow into its regime construction and its ultimate architecture. In the following, with these tasks in mind, we look first at the Internet governance as narrowly construed, focusing above all on the management of critical Internet resources. We explore subsequently the Internet governance ecosystem as a broader field of policymaking and see how the discourse on culture-related issues has evolved.

      1. 4.1. The Internet Corporation for Assigned Names and Numbers

The UN Working Group on Internet Governance (WGIG) defined  “Internet Governance” as: “… the development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet” (WGIG 2005; Drake 2005; van Eeten and Mueller 2013). If one is to conceive Internet governance narrowly, however, it is clear that at the core of the present institutional architecture is the Internet Corporation for Assigned Names and Numbers (ICANN). ICANN is responsible for the management of the so-called Internet identifiers—the domain names and IP addresses—which are essential to the functioning of the Internet as a network of networks. They can be treated as “critical resources” (Mueller 2002; DeNardis 2009, 2014) and provide the fundament for the existing online information and communication ecosystem, whose importance for cultural processes has been repeated stressed (DeNardis 2014).

ICANN is unique in its status and its institutional structure as a corporation “for charitable and public purposes” under Californian law, headquartered in Playa Vista, Los Angeles. ICANN is managed by a Board of Directors, which is selected by different constituencies, and made up of various groups, each of which represents different interests on the Internet. States are involved, at least institutionally speaking, only through the Governmental Advisory Committee (GAC), which is open also to international organizations. As defined in its mandate, ICANN has sought to operate “in a bottom up, consensus driven, democratic manner”. It seeks open consultations and the engagement of the broader global Internet community by holding meetings around the world and by offering various means of remote, online participation. Despite these efforts to stimulate participation and open deliberation, it should be noted that the final say in any matter lies with the Board of the Directors. Overall, it should be underlined that ICANN does have an unconventional structure and decision-making processes, which are in stark contrast to classic state-centered forms of governance. These features can be explained on the one hand with the origins of the Internet and its regulation, and on the other hand, with the role of the United States in shaping their evolution over time (Mueller 2002; Bing 2009; Leiner et al. 2012).

The origins of the Internet and its initial form of governance can be traced back to the U.S. Department of Defence (DoD) and its search during the Cold War era for a “system impervious to nuclear attacks or natural disasters” (Spar 1999:33; Mayer-Schönberger and Hurley 2000). Despite the privatization and commercialization of the project over time, the connection to the U.S. government remained. The Department of Commerce (DoC) endorsed a multi-stakeholder, private sector-led, bottom-up policy development model for the technical coordination of the domain name system that acts for the benefit of global Internet users. With hindsight, it is evident that ICANN had been given substantial wiggle-room and authority to manage the Internet’s technical infrastructure and to regulate the namespace marketplace through a web of contractual relationships, while ultimately, in many senses, the link of dependence with the U.S. government remained (Froomkin 2000; Bruner 2008).

As Mueller, Mathiason, and Klein (2007:238–239) explain, ICANN’s unique governance arrangement had been prompted by two key concerns within the U.S. government: the first had to do with the nature of the Internet and the related attempt to achieve global as opposed to territorial regulation of the domain name system. The U.S. administration, as well as stakeholders from the IT industry worried, perhaps with good cause, that the new global medium could be seriously undermined by widespread assertions of territorial jurisdiction and an ensuing patchwork of national regulations. At the same time, in designing ICANN, the United States was also driven by its “desire to avoid existing international institutions” (Mueller, Mathiason, and Klein 2007:239), in particular the International Telecommunication Union (ITU) as a developing-country-dominated UN bureaucracy based on a one-country-one-vote principle (Mueller, Mathiason, and Klein 2007; Drake 2000a; Drezner 2004). In this sense, one can even argue that in this phase, global cultural policies, as endorsed from the nation state, were inimical to the nature of the Internet and to its original governance model.

      1. 4.2. The Internet Governance Ecosystem

As noted earlier, Internet governance can be conceptualized as an extremely wide field encompassing various state and non-state actors and their actions that “shape the evolution and use of the Internet” (WGIG 2005; Solum 2009; Drake 2008; Mathiason 2009; Weber 2009; Mueller 2010). This governance area has only become more complex over time, as ICANN and the U.S.-dependent evolution of the management of the Internet’s core resources have been subject to harsh criticism and calls for change. The critique can be broadly clustered into two categories. One focuses on ICANN and its failings (Froomkin 2000; Hunter 2003; Mueller 2002; Zalnieriute and Schneider 2014), and the other seeks to identify the role of governments (notably other than that of the United States) in the institutions and processes of Internet governance. Next to these questions of organizational design, which can also be pertinent for cultural policy decisions, there are important substantive issues that touch upon different but fundamental questions, such as national security and privacy, and more directly relevant to this article’s focus—freedom of information, access, and cultural rights.

These tensions have become palpable on various occasions and in different fora and underlie the broader discourse on Internet governance. The World Summit on the Information Society (WSIS) was one of the first outlets of these tensions and made evident the high stakes involved in the discussion, as well as the diverging interests of the actors. The WSIS process was organized under the aegis of the United Nations and was structured in two summits, held in Geneva in 2003 and in Tunis in 2005, and a series of preparatory negotiations and regional conferences. It involved thousands of representatives from governments, international organizations, civil society, and other non-commercial and commercial stakeholders. The WSIS tackled many of the questions relevant to global Internet governance under the broadly formulated agenda of “establishing the foundations for an Information Society for all”. It adopted four instruments containing general principles and norms—the Geneva Declaration of Principles; the Geneva Plan of Action, the Tunis Commitment and the Tunis Agenda for the Information Society (WSIS 2003, 2003a, 2005, 2005a).

While touching upon critical issues and laying the basis of the emergent discourse on global Internet governance (Drake 2008), the WSIS acts remained non-binding and often ambiguous in their messages. The fuzziness covered up for the deeply controversial question on the role of governments in the governance of the Internet.

The Geneva Declaration of Principles (WSIS 2003:paras 52-54) was the first to really make the link to cultural policy, as it noted the importance of cultural and linguistic diversity, as well as local content. It also reaffirmed the “commitment to the principles of freedom of the press and freedom of information, as well as those of the independence, pluralism and diversity of media, which are essential to the Information Society. Freedom to seek, receive, impart and use information for the creation, accumulation and dissemination of knowledge are important to the Information Society”. Yet, it was unclear how and by whom this commitment would be realized. As Drake and Jørgensen (2006:33), the references to human rights norms and their implementation in the domain of Internet governance was more about “damage control” than anything else.

The Tunis Agenda had some institutional implications too, as it led to the creation of an Internet Governance Forum (IGF), with a mandate, amongst other things, to facilitate dialogue between bodies dealing with different cross-cutting international public policies regarding the Internet and to discuss issues that do not fall within the scope of any existing body. The IGF emerged in this sense, as a key venue for cultural policy issues on the Internet too.

The IGF, however, was institutionally weak by design, as it had no real decision making, nor oversight authority. It had no clear impact on the existing set-up of Internet governance and functioned more as a “global policy network” (Mueller 2010:122–125), as a forum for deliberation, civil society mobilization, and multistakeholder exchange. As van Eeten and Mueller (2013:728) provocatively but rightly observe, “WSIS and IGF provide very little, if any, actual governance. Although the WSIS involved potentially influential and powerful state actors, they simply did not agree on how to alter or institutionalize any governance practices or rules for the Internet, other than to create the IGF. The IGF has produced no collective resolutions, let alone binding agreements or decisions, and even if it did, these would have had no commitment power over the actors actually operating the Internet”.

With the benefit of hindsight, one can maintain that little changed in the post-WSIS era (Kleinwächter 2014). The United States remained adamant about practising its “unilateral globalism” (Mueller 2010:62) on Internet matters and keeping its authority over ICANN. The EU was somewhat hesitant between endorsing multilateral governance of the Internet (in a sense of conventional state-to-state cooperation) and its support for the existing (and indeed functioning) model. Many developing countries sought on various occasions to return to the classic UN model of state sovereignty and re-establish regulation through international venues based on equal voting. This desire often became evident in particular in the developments in the ITU and its efforts to provide a proper “home” for Internet policies. The ITU World Conference on International Telecommunications (WCIT), convened in Dubai in December 2012, was the culmination of this process, as it sought to review the existing International Telecommunication Regulations (ITRs) in a manner that can seriously impact on the present Internet governance architecture by granting states various possibilities to intervene and in effect hinder both existing network arrangements and the flow of information on top of networks. The WCIT final acts were fiercely opposed by virtually all developed countries but 89, mostly developing, countries including China, Brazil, and Russia did sign up. While the status quo was essentially preserved, the discord of the international community over the “who” and “how” of Internet governance was apparent and unfortunately, it seemed on most of the key issues insurmountable.

It was only recently that an exogenous shock to the system caused far-reaching repercussions. The revelations of Edward Snowden in June 2013 exposed the breadth and depth of global surveillance by the U.S. National Security Agency (NSA) in an unprecedented manner. They triggered worldwide uproar as well as concrete unilateral action of different kinds and at different levels, such as the introduction of data localization measures or direct boycotts of U.S. businesses. The critique came not only from the usual suspects, namely authoritative states, but also from the Internet community, including major Internet organizations such as ICANN itself, the Internet Engineering Task Force (IETF) and the Internet Society. In their Montevideo Statement, they “reinforced the importance of globally coherent Internet operations, and warned against Internet fragmentation at a national level”. They called for “the globalization of ICANN and IANA functions, towards an environment in which all stakeholders, including all governments, participate on an equal footing”. Indeed, a few months later, the DoC’s National Telecommunications and Information Administration (NTIA 2014)) announced its “intent to transition key Internet domain name functions” and thus relinquish its control over ICANN. The NTIA demanded, however, that the transition should support and enhance the multistakeholder model; maintain the security, stability and resiliency of the Internet DNS; meet the needs and expectations of global users; and, maintain the openness of the Internet. Quite critically, the NTIA underlined that it will not accept “a government-led or an inter-governmental organization solution” (NTIA 2014:para. 6).

In parallel, the Snowden revelations acted as a catalyst to other developments. The culmination of this stirring up of all actors alike—including governments, international and non-governmental organizations, and with great mobilization of the civil society, the active transnational advocacy networks and epistemic communities, was reached in Brazil. There, on April 23 and 24, 2014, the Global Multistakeholder Meeting on the Future of Internet Governance, the so-called NETmundial, took place under the patronage of Brazil’s President Dilma Rousseff and ICANN’s CEO Fadi Chehadé. The NETmundial Multistakeholder Statement, the meeting’s final act, despite some fuzzy language, contains a few important elements. Firstly, it confirmed the multistakeholder approach as inherent to Internet governance and expressed preference for a distributed, decentralized model for Internet governance through novel mechanisms of participation, engagement, and decision making.

Secondly and with specific regard to our discussion, the NETmundial Multistakeholder Statement acknowledges the need to adhere to fundamental human rights, such as the freedom of expression, association and privacy, as well as to respect cultural and linguistic diversity. While enshrining these rights certainly does not go beyond existing human rights documents, either at the international or at the European level, it is important that the link between human rights online and a core Internet governance document is reiterated (Drake and Jørgensen 2006).

      1. 4.3. The State of Global Internet Governance and its Links to Traditional Cultural Policy

In the last couple of decades the Internet governance landscape in terms of guiding institutions as well as the Internet governance discourse in terms of guiding principles has developed at an unprecedented speed. Our purpose has not been to fully cover this evolution but rather to expose the differences in approach to traditional policy fields, such as notably that of cultural policymaking. A few things need to be highlighted when comparing the two policy domains as particularly critical for the future of global cultural law and policy and more broadly, for attaining and sustaining public interest objectives in the digital networked environment (Kaul, Grunberg, and Stern 1999; Maskus and Reichman 2005; Barrett 2010; Brousseau, Dedeurwaerdere, and Siebenhüner 2012). While these divergences cannot always be identified as discrete categories, as they may overlap, we largely refer to: the role of the state; the role of law; the role of networks and informal ways of rule making; the approach toward human rights; and finally, the differences in discourse and framing.

The first difference is perhaps the clearest. The nation state as the core unit of international relations and the ultimate subject of international law is positioned radically differently in the classic trade versus culture debate as played out in different institutional settings—that of the WTO and UNESCO—and under the emerged architecture of Internet governance. In the former, it is evident that if any protection and promotion of cultural policy objectives is to be granted, it flows from the nation state. The state decides on the extent of supporting cultural ends and the design of the measures applied. In contrast, while the Internet is not a state-free zone, the state is just one nod in the distributed governance system, which involves multiple non-state actors, activist groups and individuals, organized in different networks, with complex interactions between them, online and offline (Padovani and Pavan 2011). These networks matter in different ways, as expressions of statist and dynamic multilateralism, as sites of power and governance making (Padovani and Pavan 2011; Singh 2009). For the purposes of our discussion, it is particularly important and interesting to observe how these networks create meanings through deliberation and how they frame issues. One can trace the differences in framing and have a sense of the outcomes that are critical for the global cultural law and policy in particular in the field of human rights.

It is clear that Internet freedom encompasses a broad range of human rights, and while freedom of expression has certainly been central, there are many other rights that include, amongst others, the right to private and family life, the freedom to associate (Drake and Jørgensen 2006). It should also be stressed that these rights are not new online but have long been established and protected in international instruments, such as the International Covenant of Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) (United Nations 2013; Jørgensen 2006). Some have argued that there is enough potency in these treaty texts, particularly in Article 19 ICCPR on freedom of speech, to develop the foundation for an “international law of the Internet”, as it explicitly protects technologies of connection and access to information, and would demand weighing in the human rights implications of software code, architecture design, and technological standards (Land 2013; Internet Rights and Principles Coalition 2014; Lara 2015), also vis-à-vis other rights, such as most notably copyright and its aggressive enforcement in the digital age (Lucchi 2014). It can be overall maintained that the new generation of Internet Governance Documents, such as the Geneva Declaration of Internet Principles or the NETMundial Multistakeholder Statement add nothing to the existing body of human rights law. Indeed, they merely note a commitment to human rights. They acknowledge their existence and imply a continuous observance but this bears no legal consequences ((Drake and Jørgensen 2006).

The pledge to human rights is also present in the cultural debate that we sketched in the beginning; it underlies the cultural diversity discourse, although and quite notably from a legal perspective, the cultural rights seem to map onto national boundaries and are to be protected by the state. In the Internet governance policy, this obligation of the state to protect, respect and fulfill citizen’s fundamental rights remains, it has however a different twist toward more rights-based approach—that is, endorsing the rights of individuals rather than carving out policy space for the nation state, so that it can cater for these rights. This change from cultural nationalism toward cultural internationalism may be characterized as a positive twist. At the same time and as noted earlier, the level of legalization is starkly different. Most of the Internet governance acts are of mere declaratory, soft law nature and there are no set institutional mechanisms that can implement these rights.

What is also observable is the very different framing of these issues. And framing matters. As Kapczynski (2008) has argued framing is not mere rhetoric but emergent interpretation that can instigate, legitimate and sustain collective action, especially in engagement with law. In the Internet governance context, framing is firstly conditioned on the wide variety of actors present. Land (2009), as well as Napoli and Karppinen (2013), describe the multiple and different voices active in the deliberations of the IGF. This multiplicity of actors may arguably provide an almost ideal setting for deliberations, as no actor dominates (Singh 2013); yet, it should be stressed that despite shared goals, the engagement of different human rights oriented groups may fail to lead to harmonization and ultimately bring about different, and potentially weaker, outcomes (Land 2009). So, for instance, as history teaches us, despite their common goals, have the A2K and the human rights movements worked on different issues with respect to online content (human rights advocates have focused on abuses of state authority, such as censorship, while A2K activists have emphasized the risks of strengthened intellectual property protection worldwide and the therewith diminished potency of the state) (Land 2009) and this may have reduced the overall effect of these efforts. As the models of representation are not set in the IGF (in contrast to traditional international organizations), it could also be that sponsors disproportionately advocate for certain human rights issues to be covered in an instrument, while leaving others unaddressed (e.g. privacy versus children’s rights protection) (Baak and Rossini 2013).

With regard to the substantive discourse itself, it should be noted that, although it uses the same or similar terms as those under the cultural policy discussions, they may often be filled with different meanings. Despite the expressed commitment to human rights in various acts, the relationship between Internet governance and human rights has not been a central topic in the IGF (Drake 2010). Human rights also tend to be conceptualized in the context of “openness”. Openness is meant to cover human rights, such as freedom of expression and privacy, but also a wider range of other issues, such as security, network neutrality, and the end-to-end principle of network architecture (Senges and Horner 2009). As Senges and Horner (2009) maintain, human rights often “get lost” in the debate—either because the too broad category of “openness” or the lack of understanding of the human rights framework in the predominantly technology oriented crowd at the IGF. This is unfortunate, as it may prevent the emergence of harmonization amongst the groups active in the field of human rights and their actions toward common goals; there is also a risk that norms will shift in response to interest-group pressures (Land 2009; Baak and Rossini 2013).

The topic of “diversity”, which has been key to the global cultural policy discourse, as well as to domestic media and communication policy, has not been explicitly thematized in the IGF (Xue 2010; Drake 2010). It is commonly subsumed under terms, such as “free flow of information” or “openness”. Very few explicit connections have been made between these debates and the ways in which diversity is used in other areas of cultural and media policies (Napoli and Karppinen 2013). The issue of linguistic diversity online seems to be singled out and reflects traditional concerns about preserving and promoting cultural diversity. Linguistic diversity is however often linked with the notion of the digital divide under a common theme of “access and diversity”, which covers also discussions on other accessibility issues, such as for instance, on access by people with disabilities. In this sense, as Napoli and Karppinen (2013) argue, there is divergence from the conventional concept of diversity, as well as, at least so far, a disconnect from the existing debates on media or cultural diversity in traditional policymaking.

    1. 5. Conclusion

By lowering the threshold for participation and enabling global reach of communicative messages, the Internet bears a promise for open cultural processes (Lessig 2005; Benkler 2006). But the outcomes are not preordained—regulatory design is critical. It is apparent that global cultural policy is no longer made under one institutional roof, at some clearly definable location, such as UNESCO, but across a range of sites (Mansell and Raboy 2011). These sites are situated along the different layers of the communication model—infrastructure, logical, and content layers—and ultimately create a highly complex governance architecture that is also in a state of flux—due to the changes in different nods of the system and their spillover effects and due to changes in technology (Raboy and Padovani 2010).

We have not seen so far the emergence of a new paradigm for cultural law and policy that appropriately reflects the contemporary geopolitical and technological contexts (Raboy 2002). There is not an appropriate “cultural policy toolkit”, as Grant and Wood (2004) call it, that can accommodate the increased policy interdependence and the prevalent messy governance structures (e.g. Burris, Kempa, and Shearing 2008), and adapt law in the face of technological change (Brownsword and Yeung 2008; Burri and Cottier 2012).

Indeed, what we sketched above, is a tale of parallel worlds. The domain of traditional international cultural policymaking seems extremely path dependent with little hope for change, even in the face of transformative changes both in governance actors and processes and in technological affordances. At the same time, this is the area, where the hard law exists. It is however a clear expression of cultural nationalism, seeking to carve out policy space for the sovereign state. The Internet governance domain has radically different governance features, with substantially less gravity given to the state, with multiplicity of actors and complex interactions. Through its active deliberation platforms, often facilitated through communicative technologies, it bears the potential to produce changes in the underlying meanings of issue areas through interaction rather than through power, as Singh’s theory of “meta-power” predicts (Singh 2013:11). In the field of relevant cultural and human rights issues, this has not happened yet. There are few signs of emerging cultural internationalism and there is a relatively low value attached to cultural policy objectives, with missing links to existing conceptualizations of human rights and cultural diversity, also because of the different active actors and the different framing. We argued that the framing of issues and principles is important and this importance may be augmented especially in contexts of policy change (Napoli and Karppinen 2013). Internet governance is also a domain of low legalization with no or few binding rules, so from the perspective of classic public international law, and in cases of potential norm conflict, its rules may be dismissed.

It is likely that the two environments will continue to coexist and while we do not hope for a “conscious awakening” and instant linking and uniform meanings in all sites of cultural policymaking, we can expect changes of politics over time (Singh 2013:7). It will be particularly interesting to observe the role of technology, of the Internet, as both challenging the underlying rationales for conventional cultural nationalism (e.g. Burri 2014), and as facilitating communicative processes, deliberation, and learning in networked environments (Singh 2013:19). It will be also important to see how the state as a regulatory entrepreneur will position itself in the newly emerged broader field of global cultural governance. The stakes should not be underestimated, as key fundamental rights, such as the freedom of information and expression, are affected, even in seemingly technical questions.

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