The coming battle over the Internet -- and over cultural diversity

From Le Monde:

1. The spider in the web -- by Ignacio Ramonet

The second phase of the World Summit on the Information Society runs in Tunis later this month. Its first phase, convened by the United Nations and organised by the International Telecommunication Union, was held in Geneva in December 2003 and focused on the digital divide. The Tunis summit’s main theme is how to find a more democratic regulation system for the internet.

The internet was invented in the United States during the cold war. The Pentagon wanted to set up a communication system that would survive a nuclear attack and allow political and military leaders (those who were still alive) to regroup and fight back. Vinton Cerf, still studying in Los Angeles at the time, dreamed up and worked out, with the help of a research team and public money, the tools and protocols of a revolutionary new means of communication. But access to this embryonic net was limited to a tiny circle of initiates in academia, politics and the military.

In 1989 the physicists Tim Berners-Lee and Robert Cailliau, of the European Organisation for Nuclear Research in Geneva, developed the hypertext system for linking documents and invented the world wide web. This technology facilitated information distribution and public access to the net, soon to expand massively and exponentially.

Since 1998 the global network has been run by the Internet Corporation for Assigned Names and Numbers (Icann), a private-sector, non-profit organisation based in Los Angeles. It is subject to California law and supervised by the US Department of Commerce. Icann is the net’s mighty switchboard. It is equipped with 13 colossal computers known as root servers, 10 located in the US (four in California and six near Washington DC) while the others are sited in London, Stockholm and Tokyo.

Icann’s main role is to coordinate the domain name system (DNS), which facilitates web navigation. Every computer that is connected to the internet has a unique internet protocol (IP) address. In their simple form, these addresses are a string of numbers. Since numbers are not easy to remember, the DNS allows them to be translated into domain names of words and letters. Instead of typing the raw IP address of this publication into your web browser, you type www.mondediplo.com . The DNS then converts the domain name back into the IP address and your computer connects to the site. Email works by the same system. All this happens at lightning speed and on a planetary scale.

In its own words, Icann “is dedicated to preserving the operational stability of the internet; to promoting competition; to achieving broad representation of global internet communities; and to developing policy appropriate to its mission through bottom-up, consensus-based processes”.

But lately there has been less and less consensus. Challenges to US control of the worldwide network are getting louder and stronger. Last September there was a preparatory summit in Geneva, ahead of the Tunis meeting, between the US and the European Union. Icann’s contract with the US Department of Commerce expires in September 2006, and the EU’s 25 states unanimously demanded that this watershed be the occasion for a comprehensive overhaul of the internet regulation system. But Washington refused to countenance any change, and the talks got nowhere.

Though not always for the same reasons, Brazil, China, India and Iran all share the EU’s position in opposing the US on this. Some countries are even threatening to create their own national regulation bodies, which could lead to a disastrous fragmentation of the net. The disagreement has a geopolitical dimension. In an ever more globalised world, communication is a precious strategic resource (see Own or share?). Its role is fundamental in an economy so dominated by the non-material. So control of the net could put whoever holds it at a decisive strategic advantage. In the 19th century control of sea routes (“ruling the waves”) was at the heart of the British empire’s enormous power.

In theory, hegemony over the net gives the US the power to limit anyone’s access to any site in any country. It can also block emails anywhere in the world. So far, it has never done this. But technically it could, and a number of countries are worried by this potential. So this is the time to demand that Icann cease to answer to Washington. Instead, it should be turned into an independent organisation under UN supervision.


2. The internet and common goods -- Own or share?
Enforcing intellectual property law in the digital age means fighting ever more effective and powerful new modes of creation made possible in part by collaborative development through the internet.

By Philippe Aigrain

IS THERE any limit to property? Current developments might suggest not, as property rights are steadily extended. Property rights, in the form of patents, copyright and, to a lesser extent, brands, apply to ever wider fields and are protected by ever stronger laws, police powers and technological tools. Resistance to the patenting of medicines, software, plant varieties and cell strains has been active and determined. But it is up against a concerted offensive by multinational companies, patent offices, specialised legal consultants, the United States government and the European Union, all working together to reinforce and extend property rights.

New technologies are helping to make copyright law more strictly enforceable, preventing the use of copyright material even for legitimate ends (1). When it comes to violating intellectual property rights, everyone is guilty until proven innocent, from users of peer-to-peer file-sharing networks to farmers whose crops have accidentally become mixed with genetically modified varieties for which they do not hold licences (2).

Jean-René Fourtou, the CEO of Vivendi Universal and chairman of the International Chamber of Commerce, addressed directors representing pharmaceutical, media and software multinationals at the United Nations in October 2004. He announced a global war on intellectual property piracy, calling on business leaders to unite and form a massive lobby working to influence governments (3). This will be a pre-emptive war that lumps independent producers and users in with industrial counterfeiters and organised crime, imagining a single enemy that will be defeated via tightly and ingeniously enforced property mechanisms.

There has been resistance to this offensive. Campaigns for access to medicines in developing countries have had some success, as have those against the patenting of software or living organisms. Increasingly, patent applications for GM crops or biotechnology products are rejected. But resistance is fragmented; campaigns only rarely succeed in pulling together as parts of a single cause.

On the technological side, there is a strong pull away from ownership of published works or recorded media. New forms of collaborative innovation, whereby ideas and expertise are freely shared, are proving more productive than traditional ways of working. Once dismissed as the work of an eccentric fringe of naive scientists who didn’t understand the harsh reality of economics, these cooperative approaches are now being taken more seriously. They have the particular advantage of orienting innovation towards the general interest and the preservation of cultural diversity, rather than being tied to profit incentives.

Academic research has convincingly established the superiority of what Yochai Benkler calls “commons-based peer production” (4) in a wide range of information technology development. In this model, every stage in the development of a product is freely accessible to all, and anyone who wants to use or modify it may do so as they see fit. The product is in this sense a common good, and is often protected against patenting by any individual or group.

The development of diametrically opposed visions vying for pre-eminence will have profound implications for the future not only of technology, but also of the world’s economies and social systems. Two scenarios are proposed. One vision’s most fervent supporters are a small group of large multinationals, represented by Fourtou’s UN audience. Their position was summed up by Bill Gates, who dismissed those wishing to restrict intellectual property rights as “modern-day communists” (5). More moderately, the defence of intellectual property is based on a conviction that it is the oil, “black gold”, of the 21st century. Critics such as Jeremy Rifkin (6) regard that defensive vision as a plausible nightmare which is to be avoided. And the defensive vision has flaws that cannot be ignored. IT networks do not lend themselves to requisitioning or to restrictions on access and usage; such restrictions are a hindrance to their development.

A number of important projects ( see Open sources, below ) have shown how powerful the alternative vision of cooperative development can be when freed of the constraints imposed by property and contracts. But there are difficulties: attempts to expand free cooperation models and apply them to new areas meet internal obstacles. One problem is the complexity and perceived impenetrability of technology, whose future we have been too willing to abandon to specialists. Another is fear about what reappropriation by the public might mean. Society’s inventiveness is gradually finding ways around these problems.

The preservationists, with their artificial engineering of scarcity to maintain monopoly prices, are encountering serious difficulties: information capitalism is proving as fragile as it is powerful. A serious illustration of this fragility is the total divorce between pharmaceutical companies’ profits and share values, and their strategies’ real effects on public health. Financial concerns lead them to prioritise research objectives that are not those which society needs (7). Coalitions are now emerging to challenge the arrogance of big pharma proposing an alternative that will re-establish the common good alongside the principle of property, complementing the more general effort to rein in the financial sphere’s unrestrained power over the economy and society.

Is this hoped-for coalition of the common good possible? Or is the fight against restrictions on the circulation of information goods (including data, software, expertise, genetic information and the organisms that contain it) a utopian dream? The movement has had a few successes: resistance to software patents in Europe; the emergence, at the World Intellectual Property Organisation; and at Unesco, of coalitions that bring diverse NGOs together with developing countries’ governments. Officially, documents such as the 2004 EU directive “on the enforcement of intellectual property rights” (8) are intended to fight organised crime and its links with industrial counterfeiting. In practice, they facilitate attacks on generic medicines, freeware and voluntary sharing of products.

Do charities and campaign groups working with impoverished countries, plus a few lawyers and political figures, have a chance against highly organised business lobbies defending IP with armies of lawyers and connections at the highest level in governments and political parties? There are reasons for optimism. Though the international legal system seems biased towards the interests of multinational companies, it does not know how information is exchanged and innovation achieved in reality. Despite redoubled efforts, tighter rules and harsher enforcement practices, stopping free information exchange is about as easy as pushing water uphill.

The popularity of freeware is helping to establish the principles on which it is based. Goods developed through free exchange and cooperative innovation present such advantages, in independence from suppliers, that they are finding their way into more homes and offices, including those of major administrations and companies.

This kind of creeping, underground spread among users is not enough. It keeps commons-based peer production at a distance from the mainstream economy, instead of developing new forms of integration. It cannot provide funding to enable all citizens to participate in the development of common goods and of a large, vibrant sphere of activity. If it is to be credible, any coalition in defence of common goods must articulate its proposals around the general aim of bringing capitalism back under control.

To do that, we need to reject the defeatist mentality that treats technological change as an external factor independent of human choices and actions.

(1) EU Directive 2001/09 frees the providers of “protection” technology from any obligation to allow for legitimate uses of the material they protect, even where the law recognises these legitimate uses. If the protection is bypassed, it is so hard to prove that this was for a legitimate end that in practice the technology makes the law instead of the judge.
(2) See the case of Canadian farmer Percy Schmeiser’s battle with the chemical giant Monsanto. Schmeiser was found guilty of violating its patent even though the Monsanto patented crops he was accused of “exploiting” had grown on his land because of natural accidents. See www.percyschmeiser.com
(3) Financial Times , London, 12 October 2004.
(4) Yochai Benkler, “Coase’s Penguin, or Linux and the Nature of the Firm” in Yale Law Journal , New Haven, 4 June 2002.
(5) Michael Kanellos, “Gates, ‘Restricting IP is Tantamount to Communism’”, CNET News.com .
(6) Jeremy Rifkin, The Age of Access , Putnam Publishing Group, Itasca, 2000.
(7) See Frederic M Scherer, “Global welfare and pharmaceutical patenting”, The World Economy, Oxford, July 2004.
(8) Directive 2004/48/CE, 29 April 2004.

(Philippe Aigrain is a campaigner for common goods and author of Cause Commune, www.causecommune.org )


3. The internet and common goods -- Open sources

The enormous success of the GNU/ Linux operating system, which is the free alternative to Microsoft Windows, should not be allowed to overshadow more modest victories of a whole range of other approaches to open-source cooperation:

  Free software: with the infrastructure ( www.gnu.org ) (operating systems, servers - www.apache.org ) in place, new open-source programs are finding their way on to personal computers every day.

  New, internet-based approaches to artistic creation: poetry forums, fan fiction, the online distribution of remixed music ( ccmixter.org ).

  Cooperative, citizen-run media ( www.indymedia.org/en/ ): Collectives that create news sites, publishing texts, videos and sound, or annotated links to other articles available on the web. Since all this content is free, it can be spread across many sites.

  Wikipedia ( en.wikipedia.org ): a huge, multilingual online encyclopaedia whose users freely create and modify articles, so that the encyclopaedia is constantly growing and evolving, under a degree of surveillance.

  Scientific publications: the Public Library of Science (PLoS, www.plos.org ), an open-access collection of scientific journals, is beginning to reach the same level of recognition as authoritative publications such as Nature and Science .

  The human genome project: researchers everywhere can access a shared database in the public domain, and add their annotations ( www.ensembl.org ).

  Collaboration: between NGOs, governments and industry to launch medical research projects based on public healthcare needs ( www.cptech.org/workingdrafts/rndtre... ).

  Selection networks: for unpatented, non-GM plants and seeds (in French: http://www.confederationpaysanne.fr... ).


4. Manifold ways that societies express themselves -- Cultural diversity belongs to us all
A large majority of countries last month approved a Unesco motion that seeks to counter the commercial treatment of cultural goods as promoted by the World Trade Organisation. Now the motion must be ratified by at least 30 countries - and implemented.
By Armand Mattelart

A CONVENTION on the protection of the diversity of cultural contents and artistic expressions was approved by member states at the Unesco general conference last month. It intends to provide a legal framework for the universal declaration on cultural diversity, unanimously adopted soon after 11 September 2001. By making cultural diversity part of humanity’s common heritage the declaration opposes “inward-looking fundamentalism” and proposes “the prospect of a more open, creative and democratic world” (1). Its key principle of diversity in dialogue is deliberately contrary to Samuel Huntington’s claim that a clash between cultures and civilisations is inevitable.

In 2001 all the governments, without exception, were keen to uphold lofty principles, lauding the plurality of difference “capable of humanising globalisation”. But agreement was not so easy two years later when it was decided to draft the convention. The United States was among the few to abstain. It had not forgotten the double blow it suffered 10 years earlier in its fierce opposition to the principle of protecting cultural exceptions, subsequently redrafted as the protection and promotion of cultural diversity.

The first setback came in 1993 when it opposed the European Union in the final Uruguay round of Gatt, the General Agreement on Tariffs and Trade that was forerunner of the World Trade Organisation. It suffered another defeat, at the hands of Canada, when it signed the North American Free Trade Agreement in 1994. Both negotiations, in recognising the special status of cultural goods, vindicated public policies, especially in the media.

Canada and France, which played a key role in framing the cultural exception doctrine, are the prime movers behind the convention. France mobilised countries in the Franco-phone world. Canada set up its international network on cultural policy and succeeded in bringing together about 60 arts ministers and many NGOs for an informal discussion on promoting diversity. In September 2001 Ottawa, and the state government of Quebec, provided financial support for an international coalition of professional cultural organisations in favour of cultural diversity, backed by a network of Canadian groups.

The scope of the convention reaches beyond media and broadcasting to “the manifold ways in which the cultures of social groups and societies find expression”. It may concern policy on language and ways of capitalising on the knowledge of native peoples. Public opinion believes that the film industry and broadcasting provide the worst examples of the risks that an unbridled global market represents for cultural diversity. The State Department in Washington and the Motion Picture Association, which represents US media giants, have pressured countries such as Chile, South Korea, Morocco and former members of the Soviet bloc in negotiations on bilateral trade agreements. In exchange for compensation in other sectors, they have encouraged these countries to waive their right to independent policies on film production.

To finalise the text

It took three intergovernmental meetings to finalise the text submitted to the conference. Its authors sought to steer a middle course between two positions. A majority group, including the EU, defends the principle of international legislation confirming special treatment for cultural goods and services as “vehicles of identity, values and meaning”. A second group, led by the US, Australia and Japan, sees the text as an attempt to maintain protectionist policies in a sector that should be open to free trade.

Disparate points of view fall between the extremes, including the fear expressed by some countries that the principle of diversity may jeopardise national unity.

The convention establishes rules for the rights and obligations of states, in article 5: “The parties reaffirm their sovereign right to formulate and implement their cultural policies and to adopt measures to protect and promote the diversity of cultural expressions and to strengthen international cooperation to achieve the purposes of this convention.” Sovereignty is the keystone of the legal structure, which means that, regardless of past mistakes, a state should be able to recover the right to decide cultural policy.

The definition of how the convention ties in with other international instruments is crucial if it is to serve as a valid reference in future disputes. The final draft of article 20 is important: it confirms that the relationship to other treaties shall be guided by “mutual supportiveness, complementarity and non-subordination . . . when interpreting and applying the other treaties to which they are parties or when entering into other international obligations, parties shall take into account the relevant provisions of this convention”. Article 21 makes consultation and coordination “with other international forums” a key element in the application of article 20.

The other international forums play a decisive role in the fate of cultural diversity. Deregulation of audiovisual and cultural services is on the agenda of the WTO general agreement on trade in services, in preparation for December’s ministerial conference in Hong Kong. The World Intellectual Property Organisation is concerned by increasing private appropriation of knowledge and learning, depriving humanity of sources of creativity.

Perhaps the weakest point of the convention is its inadequate provision for its implementation and sanctions should it be infringed. Nor is it clear how disputes will be settled.

Guiding principles

Certain guiding principles govern the concept of sovereignty: respect for human rights; the equal dignity of all cultures; international solidarity and cooperation; complementarity of economic and cultural aspects of development; sustainable development; balance, openness and proportionality. In support of these principles, articles 14 to 19 provide for “preferential treatment for developing countries” and the setting up of an International Fund for Cultural Diversity, paid for by public and private voluntary contributions.

The authors of the convention could have made better use of experience from similar projects in the past. The most obvious example is the world summit on the information society (WSIS), organised by another UN agency, the International Telecommunication Union. The first phase was held in Geneva in 2003 and a second one is planned in Tunis this month. The WSIS has had difficulty mobilising public resources in large industrial countries to fund a Digital Solidarity Fund to combat unequal access to the net. But it has also become clear that charitable foundations sponsored by information technology giants (such as Microsoft) will gain by filling the gap left by governments.

It seems inconceivable to attempt to design cultural policies without raising the issue of policy on media and communication. Yet the convention, and indeed the rationale behind Unesco’s approach to cultural diversity, tends not only to dissociate the two issues but to ignore the second completely.

Media diversity?

The final draft of the document contains two references to media diversity. The first affirms that “freedom of thought, expression and information as well as diversity of media enable cultural expressions to flourish within societies”. The second includes “measures aimed at enhancing diversity of the media including through public service broadcasting” among forms of intervention. But it makes no attempt to explain what it means by diversity of the media. There is no mention of such sensitive topics as the concentration of media ownership. Perhaps the authors are afraid of upsetting the US, which contributes 20% of Unesco’s budget and only returned in 2003, after walking out in 1984 in response to demands by non-aligned countries for more balanced exchanges, based on a new world information and communication order. It may also reflect the separation of tasks between divisions of a large bureaucratic machine.

In the 1970s debate on cultural policy went hand in hand with discussions on communication policy; the key concerns of the media industry hinged on pressure towards economic and financial concentration accentuated by an international market (2). The international commission for the study of communication problems, appointed by Unesco’s director-general, Amadou-Mahtar M’Bow, and chaired by Sean MacBride, winner of a Nobel peace prize, focused on the dialogue between cultures and harmonious development in diversity and mutual respect. The members of the commission were as diverse as Hubert Beuve-Méry, the founder of Le Monde , and the novelist Gabriel García Márquez. The MacBride report, endorsed by the Unesco general conference in 1980, and published under the title of Many Voices, One World , was the first document on the global imbalance of information flows published by an international body. It explained the urgency of considering the right to communication as an expression of new social rights (3).

Now that the convention has been approved despite US hostility, it will become a baseline and private and public players will have to come to terms with it. This is why it is so important for new players to become involved, to ensure it is implemented and to stretch its limits. While its authors drafted the convention and gained support for the idea of a legal instrument, a broad coalition helped raise the awareness of governments, encouraging them to support the project. Intense national and international mobilisation drew in a broad spectrum of networks, including representatives of civil society and members of the anti-globalisation movement, as well as national groups of media professionals.

These pulled together the strands of the discussions preparing the convention and other ideas, prompted by debate at the WSIS, establishing common ground between demands for communication rights, and matters of cultural and media diversity: diversity of information sources; pluralism in the ownership of the media and access to it; support for public services and free, independent media. The professional bodies, drawing on 30 national coalitions constituted in less than four years, showed that is possible to combine work in culture with the promotion of civil rights without becoming bogged down in defending vested interests.

In a statement issued at a meeting in Madrid in May, just before the final revision of the draft convention, the networks appealed to Unesco member states to “resist all pressures throughout this period to dilute the convention” and “resist pressures to delay the timeline for adoption to 2007 or beyond, as any delay risks seriously compromising the impact of the convention”. At least 30 states must now ratify the convention for it to come into force. It must then be implemented and improved.

(1) Universal Declaration on Cultural Diversity, Paris, November 2001.
(2) See Cultural industries , Unesco, Paris, 1982; The cultural industries , Cultural Development Division, Unesco, Paris, 1980.
(3) Sean MacBride, Many Voices, One World , Unesco, Paris, 1980.

(Armand Mattelart is professor at the University of Paris-VIII and author of Diversité culturelle et mondialisation (La Découverte, Paris, 2005)