Tangling the Web
Mark Weller
Where will all the lawyers go now that the demand for lawyers in traditional sectors has decreased? One answer could be the Internet. Many legal professionals are already gearing up to deal with an emerging element of cyberspace— government regulation.
Nineteen ninety-five was clearly the year that the public at large was introduced to the World Wide Web. However, if 1995 was the year of Web, then 1996 was the year of government on the Web. Outstripping all other organizations and topics in their on-line growth, in the last year government departments of all kinds have sprung up on the Internet. The domain extension .gov, which is reserved for U.S. government sites, now accounts for more than 2.8 percent of the total sites on the World Wide Web. While most of their other departments have been reduced, governments throughout the western world have been spending like mad to get their bureaucracies on-line.
Of course, an even greater danger than governments sprawling through cyberspace is the threat that, having discovered the Net, they may begin to desire to control it. After all, the reasoning goes, regulation is a job creator: it keeps bureaucrats busy, as well as the legal professionals who are needed to interpret the regulations.
One example of this intention was expressed recently on the CBC Newsworld program "Ottawa: Inside Out." During a segment that aired on this program on November 16, Canadian Radio and Television and Telecommunications Commission Chair Francoise Bertrand stated: "I think it's very important, on those new modes of communication, that there is Canadian content, Canadian producers as well." In other words, the CRTC is looking at ways to regulate content in cyberspace.
However, such wrong-headed plans are not limited to the Canadian government. Since the Internet operates across national boundaries, international organizations have begun to take a similar interest in regulating the Web. The United Nations Educational, Scientific and Cultural Organization (UNESCO) is interested in regulating the rights of authors in cyberspace and may soon emerge as the key institution involved in regulating the Web. They have also expressed concerns about equality of access to the Internet, and have discussed ways to promote culture on the Web. In order to demonstrate the folly of these initiatives, it is necessary to address a few misconceptions.
First, the Internet is actually something new. As Nicholas Negroponte, head of the Media Lab at MIT put it not so long ago, "Shipping bits is fundamentally different than shipping atoms." For example, web publishing and book publishing are two fundamentally different things. So existing regulatory frameworks should not simply be stretched to cover new media, which seems to be what the CRTC is advocating.
A similar misunderstanding exists with regard to intellectual property on the Net. The legal community's key reason for wanting to regulate the Web has been its concern for the protection of the rights of authors. However, this problem, insofar as it exists, arises not from any deficiency in the rights the law currently grants to authors, but rather from the difficulty of enforcing these existing rights on the Internet. The reproduction right, which is recognized in international copyright, encompasses all of the actions about which authors have concerns. The problem of enforcing international copyright on the Web, however, requires a technological fix that will not be solved by further regulations.
Of course, the assumption is often made that even if it makes no technical sense, the Net must be regulated for some greater societal good. In the CRTC's case, the greater good is the preservation of Canadian culture. There is, however, no threat to Canadian culture on the Internet—it is, in fact, thriving. For instance, we now know that 4 percent of all Web sites in the entire world have the domain registration .ca. That means they were registered as specifically Canadian sites. In terms of the percentage of the population that is on-line, Ottawa and Vancouver both rate in the top 20 cities worldwide. There is no Canadian on-line content crisis.
The real crisis that may be approaching is that by regulating the Internet, it may be effectively snuffed out. To understand why, we must first have an accurate picture of what the Internet is. Technologically speaking, it is a network of thousands of computers connected by phone lines. Geographically, it is largely American—there is a misconception that the Internet is global when it is in reality mostly based in the United States. So why is this? How did the U.S. get a head start on building the information highway? Quite simply, the United States was the first country to break up state-mandated long distance monopolies. Competition among carriers brought about cheaper long distance rates and this suddenly made the Internet economically viable in a way that it had not been before. Canada followed suit in de-regulation, and has reaped rewards with a strong national presence on the Internet. So the Internet is a direct consequence of de-regulation.
With regard to property rights, the legal framework for the Internet already exists, and there is no need for further regulation to address the concerns of authors, citizens, or producers of culture. Rather than helping, regulating the Internet would be a giant step backwards for telecommunication both in Canada and around the world.
I view legal professionals who hope to find new opportunities from the Information Highway with some trepidation. Certainly there is a role for lawyers on the Net, but if there is any temptation to regulate this new medium in order to provide a stronger basis for litigation, it should be resisted. The World Wide Web, for example, has thrived chiefly due to a lack of regulation. The imposition of arbitrary strictures would attack the Net at its core, reducing its efficiency and utility as a communications medium. As a world-wide phenomenon, the Internet is anticipated to generate over US $5 billion in annual revenues by the year 2000. The economic benefits that the Internet could deliver will not happen if lawyers and regulators, in their race to control the Net, kill the golden goose in the process.
This article originally appeared in the December 1996 issue of Fraser Forum.
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