looking forward to the next course

The fall 2009/2010 course came to an end. It has been a very rewarding experience: the course participants and clearly myself got some insights into the fascinating world of new media and their regulation at the global level.
I look forward to the new batch of participants in the spring semester of 2011.
If there are any questions about the course, its structure and contents, please, do not hesitate to contact me per email.

final notes

We have reached the end of the course on international law of contemporary media. It has been a long journey, sometimes smooth, sometimes rough. I warmly thank all the participants and wish you best of luck for the forthcoming exam and for all other future endeavours.

Further information on the exam will follow by email. If you have any queries, do not hesitate to contact me per email.

Please, note that the examinations (both the preliminary one in December and the one in January) will take place at the World Trade Institute, Hallerstrasse 6 (map here).

session 12. google book search. overview of the course's main topics and key issues. exam info. Q&As

As the end of the course draws nearer, there are a number of issues that need to be addressed. This forthcoming session will in this sense be a rather miscellaneous one. We will firstly take up some of the emerging challenges and opportunities for contemporary media law (left over from the last session) and discuss in some detail the google book search project, the legal and policy issues surrounding it. We will then proceed with a brief overview of the course's main topics and put them into perspective. The key lessons to be taken 'home' will be again elucidated.
We will then turn to some more practical issues and discuss in particular the parameters of the exam.
In the end, we will try to have sufficient time for questions and answers on the substance of the course, as well as on the exam. I will share with you my impressions and would be delighted to have your feedback too.

Here are the slides of session 12.

session 11. challenges and opportunities for contemporary media law

The changing media landscape, locally and globally, brings with it certain challenges and opportunities for law and for media law in particular. As we could repeatedly see, it is very often the case that the toolbox of media regulation has not been yet adjusted (or not appropriately adjusted) to the changed (and changing) environment of 'old' and digital media, of convergence, of new patterns of business and consumer behaviour and new modes of cultural content production, distribution and access.
There is a host of topics that would qualify as falling under the broad category of challenges and opportunities to media law. We will only be able to tackle a tiny bit of those.
With the purpose of balancing the overall contents of the course and addressing some issues that were not sufficiently discussed until now, we would take up some of the themes in the domain of copyright and at the intersection of intellectual property and media law. We will pay specific attention to the processes of expanding copyright at the national, regional and global levels, and at the so-called copyright wars against the so-called piracy. In this context, we will discuss what the repercussions of expanded copyright may be and whether creativity and innovation as the ultimate goals of intellectual property protection are properly served. We will also look at alternative ways of protecting authors' rights such as the creative commons licence, as well as at initiatives that pursue to set limits to the ever expanding copyright.
A case that could well exemplify the current state of the debates is the Google Book Settlement and we'll make use of it to situate our analysis in the broader framework of media, access to knowledge and media regulation meant to serve the public interest.

Reading materials:
Neil W. Netanel, Why Has Copyright Expanded? Analysis and Critique

Optional:




Here are the slides of session 11.

session 10. regulation for cultural diversity? pros and cons

The time for the second interactive session has come. We will discuss a topic that we already touched upon in all sorts of ways (in particular in session 8), namely: whether it is justified and in fact doable to regulate for the protection and promotion of cultural diversity? These questions are asked against the background of a globalised media landscape where we observe the emergence and use of multiple platforms and channels for expression and communication. Yet, it could be argued that many voices have been marginalised in this environment and local cultures, especially in developing countries, are increasingly lost or (mis)appropriated by powerful globally positioned media companies. On the other hand, one could argue that digital media could make the expression and distribution of such local voices possible and strengthen their cultural value and the identity of the communities and peoples creating them.
It is certain that the picture to be painted is complex and not one of black and white. This makes the discussion particularly interesting and leaves the outcome truly open. The winning party will be ultimately the one with better structured and presented arguments.

The rules of the game remain the same (see here session 5).
You have however the advantage that you already heard the presentations of your colleagues during the first interactive session and my comments on them.

The reading materials are few. They encompass basically the texts given for session 8, especially the first one on the list.
Those texts may have a slight bias towards arguments against cultural diversity regulation. Nonetheless, the other party arguing for cultural diversity regulation can make a strong case too. The lack of flexibilities within the WTO regime and the total disregard of cultural concerns are certainly the starting point there. The proliferation of mainstream content and homogenisation of media outlets possibly another good point to make. Also, the text of the Convention itself and other short documents made available on the thematic page of UNESCO on cultural diversity can help you win the case.
Optional reading with some good data is a chapter from the recent UNESCO World Report on Cultural Diversity.

I wish both parties good luck for the preparations and look forward to an interesting discussion next week.

Here as a brief follow-up of the debates, which were excellent, are my slides for session 10.

session 9. overview of the global intellectual property regime relevant to media

As previously announced, session 9 will be taken over by a guest lecturer - Dr Ingo Meitinger of the Swiss Federal Institute of Intellectual Property (Head Training and International Cooperation, Law and International Affairs Division; please find here a brief cv). As an expert in the field with profound understanding of the issues related to intellectual property (IP) protection and its regulation at the international level, Ingo will provide us with an overview of the global IP regime with particular attention paid to those provisions most pertinent to contemporary media.
I am most delighted that Ingo is joining our course and also confident that it would be a great experience for you to meet an expert with a background both in the fields of policy-making and international negotiations.

Reading materials:
Summary of the prevailing international treaties for contemporary media
Copyright in the digital age: Highway or dead-end?




Here are the slides of session 9.

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.

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.

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.

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.

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?

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.

session 4. internet governance

Session 4 will look at the internet, its origin, salient technological features and its legal implications. We shall talk about whether and how the internet should and could be regulated. An essential focus of our analysis will be on the Internet Corporation for Assigned Names and Numbers (ICANN).

Reading materials
On the Nature and Origins of the Internet, excerpts from the US Supreme Court judgment, ACLU v. Reno, 929 F.Supp. 824 (1996)
Mueller, Governments and Country Names: ICANN's Transformation into an Intergovernmental Regime

Goldsmith and Wu, Who Controls the Internet?, chapter 1
Goldsmith and Wu, Who Controls the Internet?, chapter 3
Goldsmith and Wu, Who Controls the Internet?, chapter 4
Goldsmith and Wu, Who Controls the Internet?, chapter 5

Note: While the readings for this session may appear at first sight more than the usual amount, the chapters of Who Controls the Internet? are in fact popular reading and easily digestible. They are also a good preparation for the interactive session on cyber-regulation that follows.

Optional:
The Economist, The Internet at Forty
The Economist, ICANN be Independent
Milton Mueller's critique of Who Controls the Internet?

Here are some useful links related to ICANN and Internet governance:
http://www.icann.org/
http://www.intgovforum.org/
http://www.internetgovernance.org/
http://www.icannwatch.org/

The slides of session 4 are here.

updated schedule of sessions

As I mentioned yesterday, I am delighted to let you know that Dr Ingo Meitinger of the Swiss Federal Institute of Intellectual Property (Head Training and International Cooperation, Law and International Affairs Division) will join us and take over the session on intellectual property protection and its regulation at the international level.
To accommodate his agenda, we needed however to make a slight change to the schedule of sessions. Sessions 8 and 9 are now swapped - the implications of this are minimal.

Here is the updated version of the schedule.

PS. Thanks for bearing with me on the rather not exciting topic of int'l telecommunications law. I look forward to next week's session on the Internet - a theme that is likely to stir the spirits a bit more.

session 3. int'l telecommunications law

Session 3 looks at the telecommunications rules at the international level. This entails an analysis of the law and policies of the international telecommunication union, which happens to be the oldest intergovernmental organisation, as well as an enquiry into the rules related to satellite communications. We will also explore how the communications rules have changed over time and how new regulatory models, which move away from the traditional inter-national cooperation, have emerged.

Reading materials
Walden, International Telecommunications
Burri, Communications as a Distinct and Unique Object of Regulation

Optional: Benkler, The Wealth of Networks, chapter 11

The slides for session 3 are here.

session two. the international human rights framework

It is the objective of session two to present the international human rights framework of pertinence to media. The different dimensions of the freedom of expression will thus be central to our analysis. We will look at the International Covenant on Civil and Political Rights but also discuss the law and practice developed under the European Convention for the Protection of Human Rights and Fundamental Freedoms.
I urge you to read the case Demuth v. Switzerland before the session, so we could discuss it in more detail.

Reading materials
Jorgensen, Freedom of Expression
Marauhn, Freedom of Expression (ECHR)
Legal texts:
International Covenant on Civil and Political Rights
European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)
Case:
Demuth v. Switzerland, ECtHR
Optional: Open Net Initiative Bulletin, China's Green Dam

The slides for session 2 are here.

session one. introduction and overview of the core themes

The objective of the first session of the course is to get you acquainted with 'contemporary media' as a specific subject matter of regulation. Amongst others, questions to be answered are: What are the economic and societal justifications for regulating media? Have these rationales been modified over time as the media landscape has been profoundly changed? What is international media law? What are its building blocks and how are they reflected in the course's structure?

Reading materials
Benkler, The Wealth of Networks, chapter 1 (also useful for subsequent sessions)
Flew, New Media: An Introduction
Sauvé and Steinfatt, Multilateral Rules on Trade and Culture (only pages 326-339; the entire article for session No 9)

Optional: Jenkins, Convergence? I Diverge
Burri, New Technologies, New Patterns of Consumer/Business Behaviour and Their Implications for Audiovisual Media Regulation

The slides of session one are here. For the subsequent ones, I will make them available shortly before the lecture.

intro and basics

The course 'International law of contemporary media' of the University of Bern will take place in the fall term 2009/2010 every Tuesday from 2 to 4 pm (in UniS, room A027). It will bring your ECTS account 5 credits. The teaching language as well as that of the materials will be English.
I warmly welcome you and look forward to an engaging and interesting course.

Description
The course provides an introduction to the current issues in the regulation of media at the international level, covering the pertinent human rights norms, the rules of the World Trade Organization, and the relevant topics of international telecommunications, Internet governance and intellectual property law. New digital media build the specific focus of the course.
The course is structured into 12 weekly two-hour lectures with two interactive sessions in a debate format. Each student will be asked to participate in an interactive session at least once.
This participation will be assessed and constitutes 25% of the final note.
The final exam will oral and 'open-book'.

Participation
The course is primarily directed at students of law at the master level. It is however also particularly suitable for media and communications studies students, who would like to learn more about the international regulation of media, or who share a special interest in new media and their policy and legal implications.

For a non-binding enrolment in the course, please send a short note to Ruth Peterseil: ruth.peterseil@iew.unibe.ch.

Literature
There is no particular script or textbook needed for the course. The relevant to each session readings will be provided electronically. All links will be made available here on this blog.

The books listed on the right-hand side of the blog are not necessarily part of the reading list. They are however relevant to the topics dealt with in the course and of potential interest to students eager to know more about digital media and their economic, societal and cultural implications. All these books are made available under the creative commons licence and can be downloaded for non-commercial use free of charge.