GOVERNANCE IN "CYBERSPACE' Access and Public Interest in Global Communications

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1 KLAUS W. GREWLICH Dr.jur.habil. (Freiburg), Dr.sc.econ. (HEC, Lausanne), LL.M. (Berkeley) Professor, College ofeurope, Bruges GOVERNANCE IN "CYBERSPACE' Access and Public Interest in Global Communications KLUWER LAW INTERNATIONAL THE HAGUE / LONDON / BOSTON

2 TABLE OF CONTENTS PREFACE ABBREVIATIONS xiii xvii Chapter 1 INTRODUCTION: APPROACH AND WORKPLAN 1 1. Cyberspace 1 2. Globalization: competition in worldwide Communications Access and public interest New comparative advantages 6 3. Governance The notion of governance Governance - dealing with conflicts The rule of law Workplan 15 PART ONE: THE ADVENT OF "CYBERSPACE" Chapter 2 CYBERSPACE Approximations to Cyberspace The Internet - a paradigm The Internet - a phenomenon A historical review of the Internet Dynamics of changing infrastructures The "network of networks" Economics: Internet pricing structures and settlements Internet pricing structures for end-users Settlements - whose "territory" is Cyberspace? Electronic commerce Electronic commerce on the Internet Definitions - measuring electronic commerce 48

3 viii Table of Contents Outlook Challenges: failures and successes - pricing the Net and "in the Net" Internet governance Digitization - multimedia - "deep convergence" Digitization - Multimedia Convergence New multimedia value chain Platform independence Alliances Bundling Market forces should play 69 PART TWO: "CYBER" POLICIES AND "CYBER" REGULATION Chapter 3 DEVELOPMENT AND CYBERSPACE: FINANCE -"UNIVERSAL ACCESS" - CULTURAL JDENTITY Development towards universal access Overcoming development gaps Global Information Infrastructure - From Buenos Aires to Valletta Legislative and regulatory reforms Global information infrastructure - Internet Rural development - Internet WTO issues tariffs, accounting rates Partnership with private sector Human resources development Financing communication investment in the new market place Clarification of terms (Communications market, development, infrastructure - bandwidth) The new communication market Development - "a right to communicate"? Infrastructure - bandwidth Financing requirements and financial markets Response to global Connectivity Cash-flow-driven business plans Project finance for Cyberspace ventures The art of "syndication" Experience in multi-jurisdictional environments - optimize the Internet business model? Issues to be confronted - Policy considerations - Action 93

4 Table of Contents ix Chapter 4 COMPETING "CYBER" POLICIES: US, EU, JAPAN Key policy documents on electronic commerce Previous policy initiatives on global information infrastructure (GII) and information society Competition/Rivalry of political visions Co-operation between countries and regions Strategie commonalties and disparities Comparative analysis of US, EU and Japanese policies (electronic commerce) Areas of broad agreement: IPR - telecommunications Principles and common approaches Intellectual Property Rights (IPR) Telecommunication issues Areas of relative divergence: taxes and duties - standardization Taxes and duties for electronic commerce? Standardization Areas of potential conflict: content, encryption, data protection Content Encryption Data protection Policy considerations, principles for action Issues to be confronted - general policy principles: open markets, co-operation, quality of regulation Principles for government action Principles for business action and other stakeholders 131 Chapter 5 "CYBER" REGULATION: ACCESS - THE EUROPEAN EXAMPLE Regulatory challenges Regulation, deregulation, re-regulation Areas of de(re-)regulatory action The quality of regulation The notion of self-regulation Reference framework for de(re-)regulation of Communications Access From monopolies to füll competition - the European example The significance of access and interconnection Network effects and network externalities Essential facilities - Open Network Provision - interconnection Competition rules/antitrust - access regulation to digital "gateways" Competition rules Competition and speeifie regulation: conditional access and content 158

5 x Table of Contents 3. Policy considerations, principles for action Issues to be confronted Principles for government action Principles for business action and other stakeholders 170 Chapter 6 TRUST: DIGITAL SIGNATURES AND ENCRYPTION Technical aspects of trust and security in open networks 172 l.l.cryptography Digital signatures Encryption Legal and regulatory issues - export controls - lawful access Digital signatures: regulatory issues Encryption: regulation - export controls - lawful access Confidentiality - public safety/security Export controls Lawful access to encryption keys Policy considerations, principles for action Issues to be confronted Principles for government action Principles for business action and other stakeholders 190 Chapter 7 INTERNET "DOMAIN NAMES" Domain names The importance of domain names - how the system works NSIandIANA US Proposal for the future organization of the Internet (Green Paper) Co-ordinated and competitive functions Trademarks The transition The European approach Strategy and operational positions European position concerning the US Green Paper US White Paper Competition issues pertaining to domain names Self-regulation Policy considerations, principles for action Issues to be confronted Principles for government action Principles for business action and other stakeholders 215 Chapter 8 INTELLECTUAL PROPERTY RIGHTS Intellectual Property Rights 218

6 Table of Contents xi 1.1. History and concepts Trademarks Patents Copyright The market in Copyright - economics - the case of Computer Software: the right rights balance? Social groups Copyright rules Main multilateral agreements Rights protected - four priority items The right of reproduction - "electronic reproductions" "Ephemeral" copies Limitations and exceptions: "three-step test" Communication to the public right - "making works available" Technical protection Systems Distribution right - "exhaustion" The proposed European approach Proposal on a Copyright directive Moral rights Administration of rights "Fair use" zones in Cyberspace a "WIPO database treaty"? Closer to the "right rights balance"? Policy considerations, principles for action Issues to be confronted Principles for government action Principles for business action and other stakeholders 266 Chapter 9 FREEDOMOF EXPRESSION AND HUMAN DIGNITY - PRTVACY Freedom v. public interest - dignity and privacy Liberal rights - democracy Instruments guaranteeing freedom of expression Freedom of expression v. protection of minors Renov.ACLU 21A Degrees of liability Regulatory challenges Privacy and data protection Overview The philosophy of privacy - existing legal instruments The EC Directive on the Protection of Personal Data Legislation/regulation and seif-regulation Limited effectiveness of national and international legislation/regulation The limitsof'balancing" 288

7 xii Table of Contents Global networks and local values - information havens Regulation by co-operative self-regulation Co-operative self-regulation Self-regulation in global networks - the component level Civil liberties and criminal offence - private censorship? Policy considerations, principles for action Issues to be confronted Principles for government action Principles for business action and other stakeholders 300 PART THREE: GOVERNANCE IN "CYBERSPACE" Chapter 10 GOVERNANCE: STAKEHOLDERS, JURISDICTION, PRINCIPLES - IMPLEMENTATION The rule of law in Cyberspace: stakeholders, jurisdiction, principles Structural change of international law - new stakeholders More about new stakeholders Jurisdiction Principles resulting from self-regulation Method for identifying relevant principles General principles: proportionality, subsidiarity Specific Substantive principles Implementation Instruments Outlook 341 BIBLIOGRAPHY 345 GLOSSARY 377 INDEX 399

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