Not-so-Strange bedfellows: The Internet Freedom Initiative, US copyright maximalism and the exercise of US structural power in the digital age

Not-so-Strange bedfellows: The Internet Freedom Initiative, US copyrightmaximalism and the exercise of US structural power in the digital age*

Abstract: US advocacy for two related policies – increased international intellectualproperty protection and a free and open Internet – has been criticized as beinginconsistent at best and hypocritical at worst. Placing US copyright and Internet policy inan historical context and using Susan Strange’s concepts of structural power andknowledge structures, we argue that seeming inconsistencies can be rationalized byexamining economic foundations of each policy that promote US business interests. Allknowledge regulation policies involve balancing access and restriction, with the specificbalance the outcome of path-dependent political and economic forces and subject topolitical contestation. Our analysis suggests that the current US policy of Internetfreedom and strong copyright protection represents a particular, historically situatedstrategy designed to exert structural power in the global information economy: free flowof information creates markets by exposure to intellectual properties while copyrightsecures economic benefit from the flow. We argue that a full and honest debate overissues of information access should be discussed in terms of contemporary values drawnfrom all cultures, with the realization that different societies and interests will privilegeaccess and dissemination differently. Recognizing as legitimate and incorporating thesedifferent perspectives into the global governance structures of the Internet is the keychallenge facing those who favour truly democratic global Internet governance.

Blayne HaggartDepartment of Political ScienceBrock [email protected]

Michael King JablonskiDepartment of CommunicationGeorgia State University

* With sincere apologies for the played-out pun.

Paper presented at the International Studies Association annual convention, New Orleans,Louisiana, February 21, 2015.

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NOT-SO-STRANGE BEDFELLOWS: THE INTERNET FREEDOMINITIATIVE, US COPYRIGHT MAXIMALISM AND THE EXERCISE OF USSTRUCTURAL POWER IN THE DIGITAL AGE

A. Introduction

On January 21, 2010, then-US Secretary of State Hillary Clinton unveiled a wide-reaching policy focused on Internet freedom in a speech at the Washington, DC-basedNewseum, a museum devoted to the news media (Clinton 2010). In what has since beenelaborated as the Internet Freedom Initiative,1 Clinton committed the United States to“stand[ing] for a single Internet where all of humanity has equal access to knowledge andinformation.” This commitment to preserving an open Internet, she remarked, was rootedin fundamental American values:

This challenge may be new, but our responsibility to help ensure the freeexchange of ideas goes back to the birth of our republic. The words of the FirstAmendment to the Constitution are carved in 50 tones of Tennessee marble onthe front of this building. And every generation of Americans has worked toprotect the values etched in stone.

While perhaps the most visible, State Department actions to support a “global, inclusive,free and open Internet” (Strickling & Sepulveda 2013) are only one side of the UnitedStates’ international digital-information policy. Since the mid-1990s, successive USgovernments have pursued ever-stronger digital-copyright laws and treaties, both at homeand abroad. Perhaps most infamously, the House of Representatives’ Stop Online PiracyAct (SOPA) yielded a massive reaction by US citizens against stronger online copyrightprotection. This culminated in the January 18, 2012, “Internet blackout,” in whichthousands of websites, particularly Wikipedia and Reddit, took themselves offline toprotest the bills, leading millions of Americans to contact their elected representatives toprotest SOPA and its companion Senate legislation, the Protect Intellectual Property Act(within 24 hours, the bills were dead). As Sell (2013) recounts, the myriad groups andindividuals against the bills coalesced around the idea that the bill was an attack onfreedom of speech.

Promoting a free and open Internet on one side and stronger, restrictive digital-copyrightlaws on the other has led to charges of hypocrisy against the US Administration. Weargue, however, that there is nothing necessarily contradictory about the two policies.Rather, they represent the working-out of the tension between the protection anddissemination of knowledge that characterizes all knowledge-regulation regimes. Thesetensions, while irreconcilable in theory (stronger knowledge protection implies impededknowledge dissemination), are always resolved through political action, the exact balancein each case determined by the exercise of political power exercised within a widerpolitical economy consisting of institutional structures that favour actors with differentinterests and resources over others.

1 Elaborated at http://www.state.gov/e/eb/cip/netfreedom/index.htm (accessed January 20, 2015).

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The current US Internet-copyright policy nexus represents a particular working out of thisprotection-dissemination tension, in such a way that favours dominant (American)economic and political interests, which themselves emerge from historically situatedprocesses. Specifically, a free and open –borderless – global Internet, dominated at themoment by US-based firms and multistakeholder oversight groups, benefits theseinterests while also providing the necessary means by which copyright owners –themselves predominantly American-based – can sell their assets, protected by stronginternational and domestic copyright laws that create and provide protection to theabstract assets that underpin their value. The emergence of this particular combination ofprotection and dissemination interests, furthermore, is the result of historically contingentactions.

This paper argues that a political economy framing of US international knowledge andinformation policy, emphasizing historical contingency, political power and stateinterests, offers a useful frame for analyzing these issues. In particular, we use Strange’s(1994) concept of the “knowledge structure” as a form of structural power in the globaleconomy allows us to identify US copyright and Internet policy not as separate policyitems but as logically reinforcing elements of a single policy designed to maximize theeconomic power and influence of the United States and its Internet and copyright firms.To this we add an historical institutionalist framework to trace the development of USknowledge policy over time.

To make this argument, this paper proceeds as follows. The first part outlines the debateover the tension between “Internet freedom” and copyright protectionism. The seconddiscusses the nature of knowledge regulation, drawing on Susan Strange’s (1994) conceptof structural power and knowledge structures, and Doern and Sharaput’s (2000) analysisof intellectual property’s role in having to promote the conflicting roles of knowledgeprotection and dissemination. It also briefly outlines the historical institutionalistframework that underpins our paper’s analysis of the interaction between the ideas,institutions and actors that have shaped US international knowledge policy. The third andforth sections discuss how the protection/dissemination dichotomy has been interpreted inthe United States by examining the roots and evolution of US internet and copyrightpolicy, focusing in particular on Clinton’s Internet Freedom policy and US efforts toenshrine ever-stronger digital copyright policy in the Trans Pacific Partnership (TPP)currently being negotiated among the United States and several key Asia-Pacific states(excluding China). The paper concludes with some final thoughts on the implications ofour argument for our understanding of the ongoing policy debate over the future ofInternet governance and digital-copyright policy.

B. Protectionist Copyright and a Free and Open Internet: Contradictory Hypocrisyor Complimentary Policies?

The view that the Internet Freedom Initiative and the US pursuit of protectionistcopyright policy internationally are either contradictory or even hypocritical iswidespread among Internet and copyright activists. In the depths of the fight over SOPA,

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Trevor Timm of the anti-SOPA, pro-open-Internet Electronic Frontier Foundation,remarked: “Ironically, we know from the WikiLeaks cables that the State Department hasalso aggressively lobbied many other countries for strict new laws similar to SOPA. Theyhave even offered to fund enforcement and literally draft the laws that sacrifice freespeech for greater copyright protection for Hollywood” (hyperlinks removed) (Timm2011). Other activists are more blunt, charging that the US government

is not at all in favour of Internet freedom. Witness the relentless push to keepincreasing copyright law and its insidious effect on Internet freedom. Thus,Obama signed the horrible ACTA [Anti-Counterfeiting Trade Agreement](probably unconstitutionally), and his administration is also: using other tradeagreements to export … draconian ... copyright provisions to other countries; andhas proposed ‘tough’ enforcement of copyright, including wiretaps and otherlegislation to curb ‘piracy’ on the Internet” (Kinsella 2011).

Scholars affiliated with Harvard University’s Berkman Center for Internet & Societywere similarly sharp in a response to a follow-up speech by Clinton (Clinton 2010). Inresponse to a query about possible follow-up questions, MIT’s Sasha Costanza-Chockwrote: “here are some followups for ‘will anyone think the U.S. still believes in internetfreedom …’ After the Protecting Cyberspace as a National Asset Act (the ‘kill switch’

legislation)? After ACTA (Anti-Counterfeiting Trade Agreement)? After the proposal to use trade law (Special 301) to target countries that harbor pirate

websites’ contained in this 90 pages of IP monopolist industry drivel [linked to aFebruary 2010 White House Published Intellectual Property Enforcement CoordinatorReport]?

After maneuvering for ‘veto power’ over new top level domain names?” (BerkmanCenter for Internet & Society 2011)

In the same post, David Weinberger, a senior researcher at the Berkman Center, arguesthat US copyright and Internet policies suggest “a clash of cultures”, involving “strictenforcement of so-called intellectual property rights” and Internet freedom.

Such comments seem to suggest a world in which there is a fundamental disconnect andtension between protectionist copyright and a “free and open Internet,” that an opennetwork in some way requires that the knowledge and information2 be loosely controlledby copyright law, for logical consistency if nothing else. However, while less-protectionist copyright laws may be good in and of themselves, there is also a deepercompatibility between the two policies than these comments would lead one to believe.While highlighting this seeming discontinuity might make sense from a rhetorical,political advocacy perspective, it also underestimates the political and logical stability of

2 In this paper we adopt Strange’s (1994) view that the difference between knowledge and information islargely unimportant for the purposes of understanding the wider “knowledge structure.”

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the two policies. They are, as these commentators note, linked, but the link is moremutually reinforcing than it may first appear, as we discuss below.

Understanding “Internet Freedom”

The United States defines Internet Freedom as ensuring “that any child, born anywhere inthe world, has access to the global Internet as an open platform on which to innovate,learn, organize, and express herself free from undue interference or censorship”(Department Of State, 2009). The term “Internet Freedom” is a floating signifier withdifferent meanings for different people. As Meinrath and Ammori (2012) acknowledge,“’Internet Freedom’ is a purposefully nebulous concept.” One problem with the use ofempty or floating signifiers is that two parties can use the term in agreement when. Infact, they remain in conflict. An essential conflict exists between the US vision ofInternet Freedom as expressed in this manner and information sovereignty. As was madeclear at the World Conference on International Telecommunications, a worldwidemovement seeks to legitimize the power of nation-states to control information over theinternet. Fundamental misunderstanding of rights compounds the problem. As Lucchi(2014, p. 852) explains, there remains “a rather tremendous amount of misunderstandingbetween civil rights and fundamental rights (or human rights).”

The misunderstanding over the characterization of rights is fundamental to the problem ofcopyright in a world of Internet freedom. Internet Freedom, interpreted as right of accessto information delivered by the technology, is an expression of structural power.Structural power in this case is exercised by setting the conditions under which access isdenied or allowed. The fundamental expression of structural power on the Internet is bycontrolling information available to any user either through sophisticated filtering,redirecting information or simply by disallowing use. Reliance on legal tools such asdigital copyright to constrict the flow of information does not undermine InternetFreedom as much as it acknowledges limitations. Freedoms are always tempered byresponsibilities.

The United States continues to maintain that it should retain a dominant role incontrolling the Internet. The National Security Strategy of the United States (NSS)released on February 1, 2015 claims, “As the birthplace of the Internet, the United Stateshas a special responsibility to lead a networked world” (White House 2015, 12). Thejustification for a US leadership role argues the necessity for upholding “the long-standing norms of international behavior,” which the report lists as “protection ofintellectual property, online freedom, and respect for civilian infrastructure” (WhiteHouse 2015, 13). Nothing in the report acknowledges potential contradictions betweenintellectual property controls and freedom to access information. The 2015 NSSreinforces the status of intellectual property enforcement to the level of a nationalsecurity concern. The NSS, required by the Goldwater-Nichols Defense DepartmentReorganization Act of 1986 (50 U.S.C § 404a), documents proposed uses of nationalpower to implement the defense needs of the country. Although Goldwater-Nicholsrequires a NSS to be issued every year in conjunction with the budget, only five havebeen written since 2000. Each NSS notes that theft of intellectual property has been

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costly to the US. Inclusion of intellectual property enforcement in the NSS emphasizes,once again, the centrality of intellectual property to US interests.

C. Knowledge Structures and Historical Change

The political economist Susan Strange (1987; 1994) identified four sources of “structuralpower” in the global political economy through which power is exercised, namely theability to set rules in the following areas: security from violence; production of goods andservices; finance; and knowledge. She defined structural power in the area of knowledge(the subject of our paper) as involving “the production, possession, control,communication, and above all, the legitimization of knowledge” (Tooze 2000, 187). Inthe modern global political economy, knowledge production, possession, control andlegitimization is primarily regulated by intellectual property law. Intellectual property isthe means by which knowledge is legitimized in the global political economy. Itcharacterizes copies of the same knowledge, say, a book, as “authorized” or“unauthorized” if the particular copy’s existence has the copyright owner’s permission. Itallows a class of people (copyright owners) to set the terms of access to knowledge.Because new knowledge is always built on old knowledge, it also by definition influencesthe creation and direction of new knowledge. As May (1996, 192) notes, “Power in theknowledge structure lies as much in the capacity to deny knowledge, to exclude others, as inthe power to convey knowledge.” The knowledge power structure is important both in itsown right and as a resource that is used to undergird the other three power structures (see thediscussion in May 1996).

Seen from this perspective, rules governing Internet governance and digital copyright arenot separate issues, but rather the concrete form of structural power in the area of digitalcommunications. Taken together, they construct the market for digitizable creative works(in the form of music, written expressions, and visual works such as movies3). Copyrightlaws are state-granted rights to deemed owners of creative works (typically a largetransnational intermediary) over who may copy their works. These rights are limited intime (typically life of the original author plus 50-100 years, depending on the country andthe situation) and scope (certain exceptions apply, and some things are not covered). Italso grants rights to non-owners to copy such works under certain circumstances, whichvary by country. Copyright law commodifies knowledge, reifying it as a product that canbe bought and sold and legitimizes some products (e.g., “authorized” copies) anddelegitimizes others (e.g., “pirated” copies).

Internet governance, meanwhile, refers to “the ongoing set of disputes and deliberationover how the Internet is coordinated, managed and shaped to reflect policies” (Mueller2010, 9; see also DeNardis 2014). These rules set the parameters on the physical use ofthe Internet’s infrastructure, over which creative works, both authorized andunauthorized, flow. These regulations are made both by state and non-state entities. In thecase of the former, it can involve laws and procedures for limiting the liability of Internet

3 The digital revolution no longer affects only copyrighted works. Thanks to 3-D printing, physical objectscan now be digitized, a development that threatens to upset patent law just as file sharing has come intoconflict with copyright law.

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service providers (ISPs) for the actions of their customers. In the case of the latter, it caninvolve ISPs providing some content providers, such as Netflix, with priority access totheir customers, as happens when their services are exempted from the ISP’s data cap.

Both Internet governance and digital copyright law, then, can be thought of as the form ofstructural power in the realm of digital knowledge. Given the increasing ubiquity ofdigital communications, digital structural power is therefore increasingly central to theexercise of overall structural power in the area of knowledge governance.

Forms of knowledge regulation are always historically contingent, reflecting a society’sfundamental values and power structures. In Ancient Greece, for example, the concept of“author” did not hold and writers were more concerned with recognition thanremuneration. As a result, creative works were protected mainly by “misappropriationrather than property laws” (Dutfield & Suthersanen 2008, 63-64). The current globalcopyright regime, meanwhile, is rooted in fundamental Enlightenment and capitalistnotions of individual authorship and knowledge as tradable property. Despite suchhistorical differences, all knowledge regulation at all times involves two mutuallyconflicting objectives: ensuring the protection of knowledge and its dissemination (e.g.,Doern & Sharaput 2000). Knowledge protection can arise out of a desire to ensure itslegitimacy, via, for example, determining who is allowed to use and disseminate“traditional knowledge,” or the context under which it is commodified, which is the goalof copyright law. These protection rules, however, exist in tension with the functionalneed for knowledge to circulate in order to create new knowledge and culture. If thiscontrol is too tight, then the future creation of knowledge and culture, as well as itsbeneficial use today (for example, to create an informed democratic citizenry), will besharply curtailed, with society as a whole losing out.

This tension, which is inherent to all knowledge regulation, plays itself out both withinand between digital copyright law and Internet governance. Currently, the global trend indigital-copyright law is increasingly biased toward the protection side of theprotection/dissemination divide, as will be discussed below. That said, an increasinglyvocal transnational “user rights” movement has emerged to challenge this trend,successfully countering on several occasions US-led efforts to strengthen digitalcopyright rules and enforcement internationally (see, e.g., Sell 2013).

With respect to Internet governance, the essential point is that the fight to control theInternet is an exercise existing within the knowledge regime of structural power.Countries such as the US dominate the production and dissemination of knowledge,although increasingly it shares this regime with other competitors. The physical natureand distribution of the infrastructure creates two areas of contestation. Developing nation-states that are relatively late adopters to the Internet can control the flow of externalinformation into their domestic symptoms since they tend to have few gateways to thewider net. A limited number of gateways create choke points in the information flowwhere control can be exercised (Karlin, Forrest, & Rexford, 2009). Countries with moremature Internet infrastructure, such as the US, have multiple redundant gateways thatfacilitate circumvention of attempts at control. The commercial availability of network

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technology gives developing countries the ability to create intranets, which confer thepower to regulate the transmission of information within the country. Iran, for example,can effectively control most connections to the outside world due to the small number ofgateways while also domestically controlling information flows through its intranet (Faris& Villeneuve, 2008).

The amount and locus of power that nations can exercise over Internet-basedcommunication flows profoundly influences positions on Internet governance. No singleactor can control the network, yet the degree of regulatory salience is not distributedevenly (Mueller, 2010). Countries with a substantial amount of content production favorgovernance at the technical level through private entities, such as the Internet Corporationfor Assigned Names and Numbers (ICANN). Conversely, countries seeking to exerciseinformation sovereignty advocate regulation through the InternationalTelecommunication Union (ITU) (Take, 2012). Broadly speaking, the significantdifference between ICANN- and ITU-type regulation is the amount of direct nation-stateinfluence. The dichotomy became apparent at the World Summit on the InformationSociety (WSIS) meetings in Geneva and Tunis. The WSIS declaration bluntly states,“The International Management of the Internet should be multilateral, transparent, anddemocratic, with the full involvement of governments, the private sector, civil society,and international organizations” (WSIS, 2003, para. B 48). The United States, joined byBritain, steadfastly insist on private sector governance committed to the rule of law, withcopyright being an important law. In case the message was unclear, Ambassador DavidGross (Department of State, 2003, n.p.) stated just before the initial WSIS conference,“The Information Society, however you view that term, means, of course, at its core,knowledge or information. And so we want to work on issues to help promote thecreation of content. We think that being committed to intellectual property rights, so as topromote and give economic incentives for the promotion of content, is extraordinarilyimportant.”

This protection/dissemination dichotomy cannot be reconciled or resolved: moreprotection impedes dissemination. Like Canada, a country that exists in practice but nottheory (Harper 2011), the protection/dissemination balance must be resolved in practice,through political action. Taken as a whole, we can think of digital knowledge regulationas occupying a two-dimensional space, with possible digital copyright law and Internetgovernance regimes ranked according to where they fall on the protection/disseminationcontinuum.

That knowledge structures are resolved in the realm of political practice is why it is notironic or contradictory for the Obama Administration to pursue; rather, theAdministration has chosen a particular balance between protection and dissemination inthe area of digital knowledge regulation. As we discuss below, this balance is the productof historically contingent and politically contested events. Any tension between theInternet freedom agenda and the push for stronger digital copyright protection is inherentin the subject of knowledge regulation; it cannot be avoided, only mitigated.

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This paper uses an historical institutionalist framework to understand these processes.Briefly, historical institutionalism examines the interaction of ideas, institutions andinterests (or actors) over time (see Bannerman & Haggart 2014 for a discussion ofhistorical institutionalism in the field of communication studies). It assumes that actors –individuals and groups – exist in a world of institutions that set the rules governing howactors act. Because they are the result of historical processes and are continually createdand recreated by actors possessing imperfect information and with differential access toresources, institutions reflect power distributions in a society, privileging some actors andpolicies over others. Actors seek to maximize their perceived interests, which are shapedby the institutional context within which they find themselves. Ideas, meanwhile, play akey role, as resources for actors to exploit to support their preferred policies andinstitutional configurations (e.g., copyright owners promoting knowledge control in termsof private property and critics as “pirates”) and as constraints on what actors believe ispossible: even strong copyright critics, for example, find it hard to imagine a worldwithout copyright, despite the growing evidence that it fails to achieve its stated public-policy goals of promoting the creation and dissemination of creative works (Boldrin andLevine 2008). Change, meanwhile, occurs in a path-dependent manner, limited by theexisting institutional structures: while actors both make and remake institutions andpolicies, they do not do so under conditions of their own choosing.

As with all knowledge regulation, the specific US protection/dissemination balancepositions on Internet governance and digital copyright are the result of perceived nationalinterests and path-dependent processes shaped by various actors with differing levels ofinfluence over several decades. Both international copyright protection and the particularUS vision of “Internet freedom” can be understood as promotion perceived, long-standing and consistent US interests with respect to global knowledge regulation, basedaround open global networks that provide US Internet firms and content providers withaccess to foreign markets (Internet freedom), and US-based (or identified) contentproviders4 with the desired level of protection for their works in those markets.

The following two sections situate US copyright and Internet policy in their historiccontexts, taking special note of the current state of play of these two issues.

D. The March to Internet Freedom: An Historical Perspective

The Internet may be the ultimate knowledge structure. The Internet facilitates theexercise of power by providing information flows to a large number of users atremarkably low marginal cost. The economics of the Internet, in its current form, as acommunication tool creates a dilemma based upon protection/dissemination balances.Content producers benefit from the existence of a worldwide market in which demandcan be satisfied at relatively low marginal cost; content consumers access the marketwhen technological diffusion puts the online and when access is unrestricted. The powerinherent in the knowledge structure results both from the ability to make informationavailable and the ability to restrict or eliminate information access.

4 Many of the world’s largest copyright owners are not, in fact, American. However, they are treated assuch in US policymaking circles. Hence the use of the phrase “US-identified.”

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Producers, therefore, must have a dual strategy. They must simultaneously promoteuniversal access – Internet Freedom – to maximize the number of consumers that can bereached while at the same time restricting access to information by those users in order tomaintain a market. When works produced by content providers become universallyavailable at no cost, there is no direct incentive for consumers to pay providers.Copyrights, and other restrictions on dissemination of intellectual property, create anexternality limiting legally available supplies, thereby creating a market. In this sectionwe show that the use of externalities to limit the supply of intellectual property is notunique to the Internet. Technologically advanced countries have, on numerous occasions,pursued policies that at once advocate free flows of information when it is to their benefitbut restrict flows upon the perception of economic disadvantage.

Much like we do today because of the Internet, information flows during the IndustrialRevolution must be viewed in the context of the Western Hemisphere, if not yet globally.Mokyr (1994) argues that the genius which caused the Industrial Revolution to flower inBritain was not a scientific superiority but a talent to perfect ideas imported from theContinent that skilled mechanics used to develop robust machinery. This inward flow ofinformation provided experienced craftsmen with concepts that could be transformed intofunctioning devices.

The development of intellectual property laws in England functioned to constraininformation flows, much as they do today with the assertion of copyright over materialavailable through the Internet. Strategic manipulation of patents could secure acomparative advantage for patent-holders not only in the use of a product but in thedevelopment of further technological advances. Existing patents (and associatedlitigation) blocked the development of both the Newcomen and the Watt engines, forexample, to the detriment of both diffusion of mechanical engines and research directedat improving the machinery (Boldrin & Levine, 2008; Mokyr, 2009). Strategic use ofpatents for commercial gain was supplemented on a policy level by the establishment ofcontrols on international diffusion of information. Among other controls, Britainrewarded successful importation of technology from other countries while punishing theexport of technical improvements developed within the country. The disruption ofinformation flows secured comparative advantages in international trade (Powers &Jablonski, 2015).

Much like the process in which England fed its technological development with ideasimported from the Continent, the US fueled its nascent industrial economy with ideas andartifacts from England. The adoption of British practices should not be surprising as theUnited States, from a cultural and economic perspective, “must be understood as anextension of European – primarily British- culture in the unique circumstances of theNorth American wilderness (Rosenberg, 1977). Industrialization required not only tools –steam engines, looms, forges, blast furnaces – but both the knowledge to employ toolsand to design improvements. As the US acquired the capital goods and human capital,such as skilled labor, needed to industrialize, it adopted policies modeled onprotectionism as practiced in England. And just as the hardware and software of the

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industrial economy seeped out of England to its former colony, so did but politicalattitudes regarding restrictions on the diffusion of information.

England after 1740 transformed from an agricultural economy to an industrial one in lessthan a century. When the United States followed it used the same information controlstrategy employed in England. The importation of information (whether in the form ofcompleted machinery, artisans skilled at exploiting machinery, or techniques useful indeveloping machinery) was to be encouraged while the exportation of information was tobe restricted. Much like England, the United States was an agrarian economy. No less aluminary than Thomas Jefferson advocated that the country avoid the dehumanization ofindustrialization by reliance on Europe for manufactured goods. Jefferson wove theagrarian vision into the American dream, and never abandoned it even when economiccircumstances required concessions (Smith, 1977). The struggle between agrarianismand industrialization is important because it was resolved by trying to strike a balancebetween the two, just as modern US information policy attempts a balance betweeninformation flow and constriction.

Alexander Hamilton prescribed technology piracy as the path to promotingindustrialization in an agrarian economy (Ben-Atar, 1995). Hamilton, the Secretary ofthe US Treasury, urged that Congress promote the emigration of people with technicalknowledge. In order to manage the flow of technology information, Hamilton urged thatCongress establish means to induce the transfer of both workers and machines to the USin spite of British laws forbidding the transfer of either (Hamilton, 1791). ThomasJefferson, the issuer of patents as Secretary of State, participated in the transfer oftechnology by allowing patent protection over technology pirated from England, althoughhe would not participate in the relocation of individuals where prohibited by British law(Ben-Atar, 1995). The original patent legislation introduced in the House ofRepresentatives “followed the English law in giving to the first importer of technologythe monopoly privileges accorded to original inventors” (Ben-Atar, 1995, p. 403).Conversely, exportation of technology out of the county became illegal.

The struggle for developing countries at the beginning of the Industrial Revolution wasthe balance between allowing information to flow into the country and protecting it fromleaving. The inherent dissonance between policies that advocated piracy on one hand andfought it on the other did not distress anyone. Ignoring the inconsistencies had significantinfluence on the future in two ways. First, information policy did not need to beconsistent when it furthered economic interests important to a country. When a countrysought to maximize development, it made sense to bring in as much information aspossible while simultaneously preventing the disclosure of information that afforded theholder a comparative advantage. Policy was evaluated not by consistency but by thedegree to which any action furthered the aspirations of the country in question. Second,the development of global communications with significant bandwidth emphasized localproblems of controlling transnational communication flows. The ability to communicateglobally is not new. The Nina, Pinta, and Santa Maria constituted an asynchronouscommunication system that delivered messages, perhaps unwanted, to worlds previouslyunknown to the culture of the sender and returned to Europe with new information.

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Indeed, the voyages may have resulted in the transfer of biological information as DNAevidence suggests that Columbus brought diseases with him and returned with yet otherdiseases, such as syphilis (Bower, 2008). It took months for information to maketransatlantic crossings. As technology improved, global communication increased inbandwidth: telegraphic cables, telephonic cables, radio, and satellites constantly evolveinto faster, more secure systems.

The existence of a global communication system means that the need for nation-states tothe effects of the flow of information across their borders rises in importance. Thebalances made by British and American governments during industrialization evidencedbeliefs that information could be bottled-up or released at will by a country. The idea thata nation can control the distribution of information within its borders is informationsovereignty. Monroe Price has suggested that Weberian sovereignty defined in terms oflegitimate use of violence should be amended to include legitimate controls on the use ofinformation (Price, 2014). Trade policies using intellectual property laws to regulate theflow of information during the Industrial Revolution offer a good example of the state’sexercise of sovereignty by manipulating the availability of information.

Once a company entered the global communication market it sought to protect itsinvestment by raising barriers to entry. They made it difficult to compete by formingcartels. As the twentieth century dawned, well over half of the communication cablesoperating around the world were not only British but half of those were operated by asingle cartel (Headrick & Griset, 2001). The cable companies existed to facilitateinformation flows. Their largest customers were news organizations, such as wireservices, but a significant market developed for the coordination of activities bybusinesses beginning to operate in multiple companies. (The British also extensively usedthe cable system to run its empire.)

British domination of the cable market, and the high cost of entering the business, helpedfoster the development of radio. A problem with radio as a global communication systemis that radio transmissions neither respected borders nor could be physically constrained,such as within a cable. In order for the system to operate, international agreements as tothe allocation of frequencies to prevent interference led to the establishment of theInternational Radiotelegraph Convention in 1906 (“Overview of ITU’s History,” n.d.).The framework for international regulation of global information flows, which wouldlater influence the governance of the Internet, was set.

The final factor to be considered in the march to Internet freedom is the development of amoral imperative for the free flow of information. The US advanced an argument that thefree flow of information would promote democracy and enhance freedom. The belief inthe power of information to bring about world peace has transcended conjecture tobecome dogma in US policy. The connection between free information flows andfreedom was first proposed by US Secretary of State Hamilton Fish in 1869 (Winseck &Pike, 2008). The Wilsonian approach to foreign affairs urged that infrastructure beestablished to benefit all mankind rather than business, never mind that as a dominantplayer in communications, US commercial interests would profit from the provision of

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global information systems. Wilson argued against government restriction on thedistribution of news as one of the US proposals during the 1919 Peace Conference inParis, advocating instead for the free flow of information to foster common knowledgeand understanding between peoples (Baker, 1923). The argument for unfettereddistribution of information is now an integral part of US policy.

Several factors essential to understanding US policy have now converged. Themanipulation of information flows during the Industrial Revolution shows that policyneed not be consistent as long as it advances US interests. The competition over cabledemonstrates the importance of controlling the infrastructure necessary to facilitate flows.US policy towards access to information argues that everyone in the world should be ableto access information. Information sovereignty empowers nations to control the flow ofinformation across their borders and within their country, a policy that is at odds with thefree flow of information. The problem is complicated, as we discuss in the next section,by the fact that US commercial interests prosper from availability on a world market aslong as the world complies with US restrictions on the use of copyrighted content. In areal sense, insistence on adherence to external controls of information such as copyrightoperates in opposition to information sovereignty.

E. US Pursuit of Ever-Stronger Copyright Laws

If US Internet policy is designed to ensure that the digital pipes into other countriesremain unblocked, US digital-copyright policy is designed to ensure the maximum rent isextracted from foreign markets for copyright owners whose “products” are flowing intothese markets. It pursues this highly protectionist policy both by lobbying other countriesto change their copyright laws to favour perceived US interests and through variousinternational copyright and – most successfully – general economic agreements. Theseattempts to set global copyright rules represent a concerted effort to exert structuralpower, not only in the sense of setting the rules of global market for creative works, butalso to convince other countries that the US position favouring protection overdissemination is morally superior to those that emphasize the need and right to share andaccess knowledge and culture.

The effect of intellectual property restrictions on early economic development remainsdisputed. Some scholars (Boehm & Silbertson, 1967; Bottomley, 2014; Fox, 1947)attribute the Industrial Revolution to the existence of a functioning patent system inEngland, an assertion challenged by others (Greasley & Oxley, 2007; MacLeod, 2002).Germane to our argument, Dutton (1984) established that the English patent regime –riddled with exceptions, time constrained, expensive, subject to inconsistent judicialinterpretation – functioned in a manner consistent with the need to simultaneously restrictinformation flow and make information available. In other words, “British patents offeredsome protection to investors, but did not provide complete barriers to access and use byothers” (Greasley & Oxley, 2007, p. 341).

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This strong-protectionist position was not a mechanistic response to the economic powerof the copyright industries.5 In reality, the success of the IP industries in promoting aprotectionist-IP agenda. As Sell (2003) and Drahos and Braithwaite (2002), amongothers, document, it emerged out of the interplay of interest groups within the particularinstitutional configuration of US domestic politics. The perception of intellectualproperty (which includes copyright) as a key US national interest, and of strong-protectionist intellectual property as the particular expression of this national interest, wasthe result of successful lobbying starting in the 1970s by IP-based firms (such as thepharmaceutical industry, which depends on patent protection). They convinced USgovernment officials, who were concerned that the United States faced the loss ofeconomic hegemony to the rising “Asian tigers,” notably Japan, that strong IP protectionwould allow the United States to continue its global economic dominance (Drahos &Braithwaite 2002). As a result, not only did a protectionist intellectual property policybecome part of the US trade agenda and a key component of its “trade” agreements,particularly from the 1990s onward, but IP is now seen as a core trade issue, even asother trade-relevant policy areas, such as the environment and labour, continue to betreated as add-ons to economic agreements, to the extent that they are considered at all.

Since the mid-1980s, US international IP policy has been driven within the governmentby the Office of the United States Trade Representative (USTR), which is responsible forimplementing a Congressionally mandated annual review of US trading partners’ IPpolicies (the Special 301 process), the purpose of which “was to bring all of the UnitedStates’ trading partners up to a standard of intellectual property protection satisfactory tothe US” (Drahos & Braithwaite 2002, 90). Historically, the USTR’s relatively small sizelow budget has meant it has depended largely on “the figures on piracy provided to it byU.S. companies and business organizations like the IIPA” to reach its conclusions. Thisindustry-USTR relationship was a two-way street, with USTR officials being able to lookforward to jobs with firms that could benefit from their trade and intellectual propertyexpertise (Drahos & Braithwaite 2002, 96-97).

With respect to digital copyright, US efforts to maximize copyright protectionisminternationally were first observed during the mid-1990s negotiation of two WorldIntellectual Property Organization (WIPO) treaties that laid the groundwork forreforming members’ copyright laws to adapt to the challenges of the digital age. Asdocumented by Litman (2006) and Haggart (2014), the US delegation involved in thenegotiation of the “Internet treaties,” 6 initially proposed and pursued a strong-protectionist agreement that could be also used to break a domestic deadlock back home.For example, the United States sought to define temporary copies of a work in acomputer’s Random Access Memory as a copy for the purposes of copyright law, and tomake it illegal under most circumstances to break a digital lock protecting a digitizedwork (such as an MP3) even if it were not directly related to infringement of thecopyright in the underlying work. Faced with resistance from developing countries, butalso reflecting a behind-the-scenes agreement between US-based “dissemination” and

5 By copyright industries, we mean those industries whose business model is dependent on the existence ofcopyright law, such as the publishing, motion picture and recorded music industries.6 Specifically, the WIPO Copyright Treaty and Performances and Phonograms Treaty.

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“protection” interests, these proposals were watered down in the final agreement. Forexample, signatories are required to provide only “adequate legal protection and effectivelegal remedies against the circumvention of effective technological measures that areused by authors in connection with the exercise of their rights … and that restrict acts, inrespect of their works, which are not authorized by the authors concerned or permitted bylaw.” That said, the United States has exploited the treaties’ (intentional) ambiguity tocontinue to pursue ever-more-protectionist copyright policies via Special 301 pressureand bilateral trade agreements, as well as the 200X Anti-Counterfeiting Trade Agreement(ACTA) and, most recently, the Trans-Pacific Partnership negotiations (for a discussionof the Internet treaties negotiations, see Litman 2006, Ficsor 2002, Ricketson & Ginsburg2006, and Haggart 2014).

While the protectionist copyright bias has been challenged domestically, most notably inthe successful 2012 protests against the Stop Online Piracy Act (SOPA), it continues todominate US international economic policy, most recently in the negotiations over theTrans-Pacific Partnership (TPP). International economic agreements like the TPP are akey component of structural power in the area of knowledge. Intellectual property lawsdiffer from country to country, reflecting each one’s particular institutional developmentand perceived balance of interests. Consequently, each one strikes its own balancebetween protection and dissemination. The TPP – currently being negotiated amongAustralia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru,Singapore, the United States and Vietnam – represents an attempt to set a standardizedprotectionist floor on IP and copyright protection.

While the negotiations have been conducted largely in secret, Wikileaks’ October 2014leak of the May 2014 draft of the intellectual property chapter, complete with eachcountry’s negotiating position, suggests that the United States continues to pursue astrong-protectionist agenda.

Critics of the chapter remark that the treaty tilts the protection/dissemination playing fielddistinctly in favour of protection interests. Furthermore, “the United States and Japan tobe on the extreme when it comes to intellectual property protection and trimming ofexceptions” (New 2014). James Love, director of the non-governmental organizationKnowledge Ecology International, argues that United States’ proposals in the draftchapter “nearly of all … favor big corporate right holders, and undermine the public’sfreedom to use knowledge” (Love 2014). The TPP’s proposed criminal enforcement ofcopyright is indicative of this strong-protectionist agenda. Kaminski remarks that theUnited States is promoting the criminalization of non-commercial-scale copyrightinfringement (i.e., individual copyright infringement; Article QQ.H.7). This could lead tosituations such as that in Colombia, “which enacted its current criminal copyright lawpursuant to its free trade agreement with the US, a graduate student was arrested forposting a fellow scholars’ academic paper online without permission” (Kaminski 2014).

As currently written (in the May 2014 draft), the TPP would

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allow for seizure of anything that was used to infringe copyright – even if it is anordinary company asset like a server or laptop, even 99% of its use is non-infringing – with no requirement that the penalty be proportionate to theseriousness of the infringement or the harm caused to IP (Weatherall 2014, 2)

This is beyond not only the requirements of the 1995 Agreement on Trade-RelatedAspects of Intellectual Property Rights (TRIPS), but also beyond what the United Statesand other countries negotiated in the Anti-Counterfeiting Trade Agreement (ACTA)(Weatherall 2014, 27), largely seen as the previous main US attempt to globalize the USstrong-protectionist IP position.

Additionally, the treaty would extend the minimum term of protection from 50 years afterthe death of the creator to 70 years after death, or 120 years for corporate-owned works,and strengthen the legal protection of digital locks.

F. Analysis and Conclusion

As we have shown in the previous two sections, state communication policies, which alsocover knowledge diffusion, has always set a balance between knowledge protection anddissemination promotion. This balance, furthermore, has always been set so as tomaximize the state’s perceived (and historically/politically constructed) economicnational interest, since the state is the actor responsible for constructing the markets,domestic and international, within which economic actors operate.7 Objectively speaking,states and societies will have different opinions on how this balance should be struck,depending on their level of economic development and how they prioritize non-economicissues related to speech and the control of information. Dominant states, meanwhile, willattempt to exert structural power to define their particular balance as being in the widerglobal interest, and to convince other states and non-state actors that this balance isuniversally just, legitimate and appropriate for all states. In the area of copyright,Bannerman (2013) notes that the Berne Convention was foisted on colonies like Canadaby imperial European powers despite clear and recorded recognition by Canadianofficials that Berne was not in the Canadian national economic interest. Nonetheless, bythe mid-20th century, Berne had become an article of faith in Canada, though itslimitations with respect to Canada’s interests were still recognized (Haggart 2014).

The current battles over digital copyright and internet freedom are reminiscent not onlyof previous communication-related debates, but also of the historic tendency of leadingindustrialized states to declare that free trade policies are appropriate for countries atevery level of development, despite the fact that these same industrialized countriesdeveloped through protectionist means. From this view, “free trade” amounts to “kickingaway the ladder” of economic development for developing countries (Chang 2002). Wecan look to the past and see that the United States, when it was deemed economicallybeneficial, took a much different line toward information freedom than it does today.

7 We leave aside here the fact that the state’s “national interest” is influenced by business and other actors.

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Seen in this light, US discourse around “internet freedom” and more protectionistcopyright (and IP in general) laws are two necessary sides of the same coin. Internetfreedom, defined in terms of ensuring everyone’s ability to access information on theInternet, no matter where they are located, is a logical and necessary precondition for USattempts to promote stronger protectionist copyright rules globally to have any meaning.These proposed changes, furthermore, would benefit primarily the US-based and US-identified copyright industries that control the majority of economically valuablecopyrights (with a large proportion of the remainder controlled by firms based in theglobal North, particularly Europe and Japan).

Internet regulation, intellectual property and the quest for democratic legitimacy

Secretary of State Clinton’s Internet Freedom Initiative committed the United States to avision where everyone everywhere has equal access to knowledge. Although the conceptis worthy of praise, the implementation runs afoul of economic restrictions on the transferof knowledge that serve US commercial interests. Access is not equal when a price mustbe paid in the form of license fees for the use of intellectual property. Disparities inincome level across the globe create discontinuities where only the comparatively richercan access protected information. Just as there has been a global “digital divide” in theprovision of infrastructure necessary to utilize computer-based communication networks,there will be a “knowledge divide” as costs of acquiring information prevent access evenwhere connections are available.

We are not saying that access to all intellectual property should be free. We point out twoincongruities. First, policy should acknowledge the existence of an essential andirreconcilable (at least at the theoretical level) contradiction between the desire to allowall humanity access information and the imposition of fees that restrict humanity fromexercising such rights. This tension is at the heart of all knowledge governance policy. Inthe actually existing world, policymakers often must navigate between desirable goalsthat can only be reconciled in practice. Free speech is good, but we acknowledge a needfor responsible speech that inhibits yelling “fire” in a crowded theater. Once problems arerecognized then debate can be begin on how to balance competing values and interests.

Second, the contradiction between a free and open Internet and the pursuit ofprotectionist copyright policies that we demonstrate here demonstrates an essential factorof the exercise of power in a world where it is possible to transfer information at greatspeeds and in great quantities. Structural power, as defined by Susan Strange, involvesproduction, possession and legitimization of knowledge. There are two factors inlegitimization that are at work. One is protection afforded by intellectual propertylegislation. The other is the ability to control the flow of information within nationalborders. These power structures may work in opposition with each other or they maywork cooperatively. Copyright owners, for example, retain power to deny or permitaccess to information and creation of new knowledge and culture with tools of varyingeffectiveness. Similarly, network operators run software that can permit or deny access toinformation, as countries that engage in filtering have done on many occasions. So in

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addition to the balancing competing values and interests, there is a need to moderatetechnical access.

These competing concerns are crucial to the ongoing debate about Internet governance.Countries that are net importers of digital products wish to establish structures that allowthem to control the flow of information crossing their borders. Countries that are netexporters of digital content need markets, which in turn motivate demands that allhumanity have access to information. Beyond economics, countries may wish to restrictor encourage the flow of information for reasons that reflect their particular interpretationof their social interests.

The dichotomy between access and restriction is not new. Necessarily contradictoryinformation policies prevailed during the Industrial Revolution as nation-states reformedtheir economies to take advantage of new technologies. Industrial technologies couldonly be effectively implemented where a country acquired knowledge of new hardware,but they also need software in the form of clever craftsmen who could improve on priorideas. The policy then, just like now, restricted and promoted the flow of information inways consistent with the need to exercise economic power.

It is important to note that contestation over access to information in the digital age tendsto be framed in terms of universal rights. The assumption prevalent in the United States,Canada, and Britain is that free access to information promotes democracy. Theassumption remains unproven, and a full discussion of it is not appropriate for this paper.The point, however, is that the issues of access to information go beyond economicimpacts. A full and honest debate over issues of information access should be discussedin terms of contemporary values drawn from all cultures, with the realization thatdifferent societies and interests will privilege access and dissemination differently.Recognizing as legitimate and incorporating these different perspectives into the globalgovernance structures of the Internet is the key challenge facing those who favour trulydemocratic global Internet governance.

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