Tuesday 27 October 2009

session 8. media globalisation and its discontents

After the hard work done in getting to know the law of the WTO, this session will be more dynamic and less legalistic.
It will explore the effects of globalisation on media and how states have reacted upon these. We will look in particular at the tension between trade and culture, and at the concept and regulatory objective of cultural diversity. We will also contemplate whether digital media are differently created, distributed and accessed and what the implications of this may be - e.g. for promoting creativity and for fostering cultural identities.

Reading materials
Burri, Trade and Culture in International Law: Paths to (Re)conciliation
Anderson, The Long Tail
UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions

Optional:
Time's Person of the Year: You, 2006
Anderson, Free
The Economist, The Clash of Clouds, Oct. 2009

All readings will be of immediate help for those who will present during the interactive session on cultural diversity. They also give a good intro to the session on the challenges and opportunities for media law.

Here are the slides of session 8.

Tuesday 20 October 2009

session 7. wto law (2)

After having gotten the basic idea of the institutional set-up of the WTO and its functions, session 7 will go into the substance of the WTO law. We will firstly look at the underlying principles of non-discrimination (most-favoured-nation treatment and national treatment obligations) and how they are regulated under the GATT (for goods) and the GATS (for services) respectively. We will then focus on those rules of the WTO that are most relevant to telecom and media products and services or were specifically designed to address them.

Reading materials
Roy, Audiovisual Services on the Doha Round

Optional: Van den Bossche, The Law and Policy of the WTO, Chapter 4
(this is an abridged version of the chapter; while it is still too long, it could serve well as a reference text in case more clarification is needed on the non-discrimination principles under GATT and GATS)

Here are the slides of session 7.

Friday 16 October 2009

admin update

The preparation for the exam has been completed this week in co-operation with the Dean's Office administration. As announced, the exam will be oral and take place in January 2010 (the date will be set by the Dean's Office and attempts to accommodate best all students' exam schedules).
Five persons requested due to personal reasons having the exam in advance. This exam will take place on the 10th of December 2009 (the list of examinees can no longer be expanded).
Please note that everyone must register for the exam via the University of Bern electronic examination administration ePUB. The ePUB link is here and registration is already open.

Wednesday 14 October 2009

session 6. the law of the world trade organization

Sessions 6 & 7 focus on the law and policy of the World Trade Organization (WTO). The purpose of the first session of this pair will be to introduce you to the institution of the WTO and to its unique characteristics that set it apart from other international organisations. We will also talk about the basic rationales for free trade, about the sweeping process of economic globalisation and about the need for state cooperation and global rule setting. While the topic is complex and it does come along with its own and often very specific vocabulary, it is critical to understand that a great deal of our domestic policy- and rule-making (also in the field of media) is dependent upon these developments at the global level.

Reading materials
Van den Bossche, The Law and Policy of the WTO, Chapter 1
(the analysis of economic globalisation and its pros and cons will be useful also for session no 8, as well as partially for the interactive session on cultural diversity protection)

Here are all WTO legal texts.
We will pay particular attention to the Marrakesh Agreement Establishing the WTO (the WTO Agreement), the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS).

Optional
Here are some additional basic reference texts about the WTO:
Understanding the WTO
10 Benefits of the WTO Trading System
10 Common Misunderstandings of the WTO
WTO Dispute Settlement: One-Page Case Summaries (1995-2008)
Here are some cases exemplifying the theory of comparative advantage.

Here are the slides of session 6.

Tuesday 13 October 2009

follow-up. session 5

The interactive session was very interesting and dynamic thanks to the performance of both parties arguing pro and counter cyber-regulation. Congratulations on this and warm thanks.

In terms of improving the debate, I would recommend to concentrate on fewer arguments but then develop them more thoroughly. The use of examples is welcome and convinces the audience of the strength of your position. Do use however only one or two examples but be more precise and more detailed in their presentation. A simple enumeration of cases is not very helpful since these can often be interpreted in multiple (even conflicting) directions and can also be used as easy counter-arguments by the opposing party.
In terms of preparing for the oral exam, I would recommend looking not only at the descriptive dimension of the question of can cyberspace be regulated but also at the normative one - i.e. is it legitimate to regulate cyberspace? If yes, one should contemplate how this regulation should be designed and here it is important to consider the different levels of regulation (national, regional and international), as well as whether another modality of regulation would be more suitable. Under modality of regulation, I basically understand, as suggested by Lessig and as elaborated during the lecture, (i) law, (ii) social norms, (iii) markets and (iv) architecture. In cyberspace, the latter, i.e. code, could be said to often be displacing the law, which is a development that brings with it other and often problematic implications. Your argumentation for the exam does not need to be abstract however and you can readily apply your knowledge of ICANN, internet filtering and digital copyright.

Here are the slides of my brief wrap-up at the end of the session.

The last few slides present the Yahoo! case (La Ligue Contre le Racism et I’Antisémitisme v. Yahoo!, Inc., Superior Court of Paris, 22 May 2000), which is rather well-known and presents a situation where national jurisdiction (of France) has been 'extended' to a US based company because 'damage was suffered in France'.
While the judgment could not be ultimately enforced in the US, the Yahoo! case invites an intriguing discussion of cyberspace regulation. It is clear that people in different countries do not share the same perceptions of the world and how it should be organised. In this sense, with Yahoo!, we encounter the 'lowest common denominator' argument, i.e. if websites are subject to the laws of all jurisdictions from which they can be accessed, the legal norms of the most restrictive community will prevail.
On the other hand, if foreign courts cannot reach websites located in other jurisdictions, will the legal norms of the least restrictive community prevail? In the context of the Yahoo! case, if foreign courts cannot reach US-based entities, has the United States then imposed its relatively unrestrictive First Amendment on global Internet speech?

Wednesday 7 October 2009

session 5. cyber-regulation

This session is going to diverge from the classic ex cathedra lecture and offer a platform for some debate. The core question that will be discussed is that of whether cyberspace should and can be regulated? Is cyberspace something profoundly different that does not allow conventional modes of state regulation, or is it just another medium where state sovereignty is asserted?

Answers to these and more questions will be given during the interactive session, which is structured as a 'moot court' and invites verbal fight.

The interactive session will be organised in the following way:
We will have two parties arguing against each other. Each group will have 15 minutes to present its arguments. Each group will then have 5 minutes to criticise the arguments of the other party. 5 subsequent minutes will be given for a rebuttal. You can decide among yourselves who will be the speaker(s) of the group. One idea will be that each person presents one or two arguments so that the burden is equally distributed.
In order to provide the opportunity for the other party to prepare its counter-arguments, it would be necessary that you send me a short list of your main points (no more than 5-10 arguments put on no more than a single page) at the latest on Monday. I will forward this to the other team.
The persons not participating in the session will form a jury and will in the end of the debate judge who the 'winning' party is. I would intervene in matters of procedure and when necessary to spur the discussion.

As announced at the outset of the course, this participation will be assessed and constitutes 30% of your final grade. Criteria for the assessment will be the use and structure of the arguments, their relevance to the particular question asked and to the defending position. Reference to topics we already discussed or original ideas will be additionally rewarded.

Here is the initial package to prepare. It combines pro and con arguments, which will also help you anticipate the argumentation of the opposing party.
cyberlaw 1
cyberlaw 2
cyberlaw 3

These materials are abridged versions of the articles. The full versions of David G. Post can be found here and some of those of Jack L. Goldsmith here (these are however by no means compulsory reading).
You may use some of the reasoning and examples given in chapters 4 & 5 of Who Controls the Internet?, which formed part of your reading materials last week.