JILT 2002 (3) - John Cahir
Table 1: Information Law in the Private Sphere
Table 2: Information Law in the Public Sphere The economic factors that give rise to the laws listed in Table 1 take a number of different forms. Intellectual property rights, trade secrets and, to a lesser extent, confidentiality laws 26 all grant the holder of such rights a proprietary interest in information. Under conventional economic theory these rights are granted in order that individuals and organisations may have an incentive to create new and worthwhile information They principally affect the flow of information between private individuals 27 by granting the exclusive rights to one party to control the dissemination of information to others. This grant of an exclusive right enables the holder of such right to obtain financial benefits by charging others for the permission to receive the information. Laws that oblige companies and individuals to disclose information about their products, or companies about their financial position to the stock exchange, also have an economic rationale. First, the production of such information also involves an incentive problem ( Beales, Craswell and Salop,1981 ) - manufacturers of products are unlikely to reveal information that may be damaging to their sales performance or profit opportunities. Alternatively, such mandatory rules can be viewed as an attempt to overcome the asymmetry of information that often exists in commercial relationships 28 . Asymmetry of information refers to the common condition where one party to a transaction has more information than the other, e.g. the borrower knows more than the creditor about his creditworthiness or the seller of the second-hand car knows more about its mechanics than the buyer. In economic theory perfect competition requires perfect information, therefore one can view laws that oblige the disclosure of market information as furthering the goal of achieving the perfectly competitive market. The `non-economic' factors that give rise to laws that affect the flow of information between private individuals are concerned primarily with the subjective content of information. They are based on normative propositions, such as - false information is undesirable, information that carries racist connotations is objectionable and information that depicts certain sexual acts is unacceptable. They operate by prohibiting the transmission of information that carries a particular meaning . Information law in the public sphere can be categorised by reference to three factors. First there are the `freedoms' to which citizens are entitled and the correlative restraints that government may put on the flow of information. Secondly, there is the state regulation of certain information services, such as the postal and telecommunication services that indirectly affect the flow of information in society as a whole. Thirdly there are the rules that govern the administration of the `third estate', i.e. the judicial branch of government. In the first category laws may prevent government from restraining the flow of information, cause the government to transmit information, or entitle the government to keep certain information secret. The principle freedom concerned is the freedom of expression, which is guaranteed under article 10 of the European Convention on Human Rights and thus incorporated into UK law by the Human Rights Act, 1998. It acts as a negative restraint on government, i.e. it prevents the government from restricting the flow of information. In contrast freedom of information legislation places a positive obligation on government to disclose information. For instance Section 1 of the Freedom of Information Act, 2000 grants a general right of access to the public to information held by a public authority, though it is considerably qualified by exemptions 29 . At the opposite side of the equation the Official Secrets Act, 1989 prevents the disclosure by government servants and other persons of secret government information. These rules are again concerned with the flow of meaningful information. Their significance derives not from the fact that they set rules regarding the free or encumbered flow of information, but rather because they lay the conditions for private or government control over meaningful information. The second category is somewhat anomalous in the information law scheme in that it deals primarily with the regulation of information carrying channels, i.e. telecommunication networks, radio, broadcast and satellite transmissions, ISP's, cable and postal services 30 . Thus it governs the rationing of entitlement to control the channels of communication rather than the meaning of information itself. It is in the `public sphere' because in most states communications networks are either under public ownership or a public licensing/regulatory regime. To bring it into the information law framework, this category may be termed an indirect regulation of meaningful information. An aspect of communications regulation concerns technical issues that pertain to channel capacity and traffic, however the greater part is a set of rules that create particular market conditions (which give significant power to its participants over information flows) and link channel carrying entitlement with information content requirements 31 . The third category of public sphere information regulation is the law relating to the conduct of criminal and civil trials. They derive from the principles that justice should be administered in a fair and open fashion. A full disclosure of relevant information is essential to the proper conduct of a trial. The rules of discovery require parties to a trial to reveal to the court (and the opposite party) information that is material to that trial, though they may also entitle a party to an action to keep certain information secret, e.g. privileged communications. The broad freedom to report trials (and hence communicate information regarding trials) is again not absolute; limitations on reporting sensitive matters, such as cases involving juveniles, are permitted. The above review of information laws illustrates how wide the area concerned is; nonetheless, the laws identified possess a common feature which justifies them being analysed under an information law approach. By separating the public and private rules that pertain to information, one can analyse the factors in a more systematic fashion. Information rules in the private sphere generally give effect to economic and normative content policies. Information rules in the public sphere, on the other hand, give effect to policies regarding the desired flow of information between the state and private actors, the ownership of the channels of communication and the conduct of fair and open trials. Common to all laws is the regulation of meaning embodied in information. When the law intervenes in the communications process it aims to impact on the production or transmission of meaningful information. It can do so by prohibiting the transmission of certain information; causing the transmission of certain information; granting power to a private actor to decide whether and how information is transmitted; granting the power to a private actor to control a channel of transmission; or preventing the government or individuals from interfering with the transmission by others of information. The map of information law issues as sketched so far has separated two important features of information - signal transmission and meaning - and has further bifurcated information regulation into public and private spheres. The fact that transmission of information is altered in a particular way does not necessarily reveal an underlying policy agenda. A `liberal' policy may be given effect as often by restricting the flow of information as by permitting it. The proclamation `information wants to be free' 32 is therefore meaningless from a political perspective, as it evinces no distinctive ideological outlook. In order to complete the information law framework the instances where the law regulates information must be extracted and examined in light of the socio-economic structure of society itself. 5 . Information as a Constitutive Element of SocietyThe idea that information is a constitutive element of society has its origins in the economics and sociology literature of the post-war era that recognised a structural shift in western capitalism from industrial production to service economies 33 . This feature of economic development inspired the post-industrial theory of Daniel Bell ( 1976 ) 34 . Bell analysed economic data appertaining to American economic activity and occupational roles and concluded that there was a decisive shift from agriculture and manufacturing activities to service or white-collar activities. The driving force behind this change was the ascendancy of theoretical knowledge and the consequent replacement of human physical labour with machines ( Bell, 1976 , p20). The principal theoretical theme of his work was that the shift in occupational roles undermined the Marxist analysis of social development. Bell argued that class distinctions determined by ownership in the means of production were no longer relevant, and that one's possession and control of knowledge was a more important source of social differentiation. Post-industrial theory's claim to have reformulated the social structure of society has been severely criticised in subsequent literature; the principal charge being that Bell failed to notice the assimilation of `knowledge' activities into the conventional wage labour/market paradigm ( Schiller, 1997 ). Despite his failure to consign Marxist thinking to history, Bell's work can be regarded as the forerunner of the `information society' concept, i.e. the idea that information (the equivalent to Bell's theoretical knowledge) is itself an independently important feature of modern society. Information society theorists have extrapolated Bell's thesis by arguing that not only is the service sector assuming dominance in western economies, but more particularly, service sector activity is increasingly devoted to the production of information commodities. Castells ( 2000 ) has built on Bell's economic approach by sketching the outlines of an entire sociology based on the informationalisation of production; he argues that informational capitalism is in the process of giving rise to a new social structure and describes the turbulent consequences of this new era 35 . From the perspective of economic production one can identify two economically distinct types of information commodity that are produced for the marketplace - instrumental goods and consumption goods 36 . The former are applied (and generally not consumed) in a production process in order to achieve some productive outcome, e.g. software applications 37 . The latter are `experience' goods and are generally consumed as an end in themselves, e.g. movies. The information society is therefore markedly different from the past; it is a society wherein the labour force concentrates on producing, processing and distributing information as opposed to material goods, and where consumption of information commodities replaces consumption of physical goods as the primary focus of consumer activity 38 . The ramifications of this new phase in economic development are not yet clear, however there is little doubt that it has changed and will change further the economic and social relations that emerged in the industrial phase of economic development. A contemporary work of Bell's that may also be regarded as an influence underpinning the conceptualisation of an information society is Jurgen Habermas' theory of communicative action ( Habermas, 1984 ). The basic idea of his theory is that it is through the action of communicating (i.e. information exchange) that society evolves and operates. For Habermas the development of complex social organisation (rationalisation in the sense meant by Max Weber) in modern states necessarily entails a repression of communication (`excommunication') by individuals, groups and more generally in public life. His emancipatory project is to develop a concept of `ideal speech', i.e. communication that is open and free from domination, that can exist within rational organisational structures. In contrast to Bell's social theory, which is grounded in contemporary economic trends, Habermas' theory is of a general application to different stages of social development. They both, however, share a recognition of the importance of information and communication as factors that both influence and form social relations. Law undoubtedly plays an important role in shaping the new relationships of the information society 39 . The overriding aim of the information law approach is to assess how exactly laws can and do shape the emerging economic and social order of the information society. The following analysis will provide a brief overview of the ways in which information laws (i.e. the laws identified in Section 4) impact on the social and economic relations under the rubric of the standard sociological categorisation - polity, economy (social structure) and culture. It is accepted that this classification is an oversimplification and that in reality polity, economy and culture are inextricably intertwined, e.g. economic power often equates with political power and both polity and economy can play a significant role if the formation of culture. It is only for analytical purposes that an explicit conceptual divide is recognised. The observation that intellectual property laws impact on each category illustrates their interrelatedness. 5.1 PolityPolity refers to the organisation and distribution of political power in society. One of the founding principles of liberal democracy is that all citizens should have an equal right to participate in the exercise of political power through the democratic process. Closely linked to the idea of democratic participation are the rights of expressive freedom and personal autonomy ( Dworkin, 1988 ). Three categories of information law can be readily identified as impacting on polity - freedom of expression (free speech), intellectual property laws and the law relating to the privacy of personal information. Under the information law approach, one analyses these laws by reference to their effect on the organisation and distribution of political power in society. Under free speech doctrine, the ability to initiate and partake in a political discourse is viewed as the animating feature of democracy; without it political change could never occur and democracy itself would be a chimera. A person's capacity and freedom to communicate (i.e. send and receive information) is therefore a crucial feature of participatory democracy. Laws that dictate what information may and may not be communicated play an important role in determining what individuals, groups and interests acquire political power. Assuming that non-discriminatory access to the political process is a desirable goal, the question to be addressed in the information law approach is the extent to which legal measures promote or hinder an individual or groups' freedom to communicate on the political level. In the public law field (i.e. citizen/state relationship) the freedom of expression guarantee is the principal regulator of unencumbered information flows at the political level. American first amendment jurisprudence is possibly the best illustration of this principle in action 40 . This powerful constitutional protection prevents government from silencing speech, even if what the person is saying is distasteful to the majority. Though the first amendment freedom is not absolute (state secrecy laws for instance may take precedence) it has a long and proven record of constraining overt government restrictions on information flows. One could describe the free speech principle as the information law of most direct relevance to the promotion of non-discriminatory access to the political process in democratic societies. Under conventional democratic theory the freedom of speech guarantee, if fully implemented, in itself achieves the goal of a participatory polity. Restricting one's analysis of power distribution to the state/citizen relationship, however, ignores other information laws that may have an even greater effect on free speech and personal autonomy than straightforward government censorship. Recent American academic literature has sought to expand the free speech analysis to include copyright law and telecommunication regulations as other possible sources of disequilibria 41 . The major shift in this analysis is to view private laws that affect information flows from a perspective that was traditionally in the domain of constitutional supervision. According to this line of scholarship, in a society where the private sector possesses the greatest de facto control over the channels of communication and information flows, the relationship between the free speech principle and democratic participation is redundant unless it looks beyond the strictures of the state/citizenship relationship. Netanel ( 2000 , p1900) states that:
Benkler ( 2001b , p51) extends the analysis by establishing a connection between the power concentrations that result from copyright law expansion and telecommunication deregulation and a reduction in personal autonomy. The approach of these authors highlights the inherent contradiction between the dual flanks of Enlightenment thought, namely the respect for private property on the one hand and expressive freedom on the other, in the context of information ownership. Property rights in information are granted to promote the production of information, however, at the same time they necessarily restrict the flow of information by granting exclusive dominion to owners over information flows. The dynamic and static effects on information production caused by copyright laws further compound the threat to free speech by fostering market hierarchies and thus establishing access barriers to information markets 42 . The problem with maintaining a link between robust private information protection and encumbered speech is that private property rights affect the flow of information by stealth rather than by prescription. Government censorship of speech is overt and can therefore be easily identified and challenged in the courts. Concentrating ownership of information content and communication channels in private hands in contrast is hegemonic rather than despotic in effect 43 . Information laws in the private sphere may therefore have a detrimental impact on important principles of democratic participation but yet go unnoticed and unchallenged in the courts. Indeed the juridical divide between the public and private sphere may mean that there is no effective legal redress for such imbalances. Despite this problem of perception the information law approach as articulated in this article includes all laws, irrespective of their juridical provenance, within its remit provided that they demonstrably affect the distribution of power in society. Another important, but distinct information law that impacts on the distribution of power in society is the law relating to the privacy of personal information. In liberal theory and in the Kantian philosophical tradition the right of an individual to keep secret information that relates to his own persona is viewed as an important characteristic of freedom in liberal democracies. Westin ( 1967 , p33) identifies four values that individual privacy promotes - it provides personal autonomy; it provides the opportunity for emotional release; it permits self-evaluation; and it creates opportunities for the sharing of confidences and intimacies. A host of laws assist in the protection of information privacy, including breach of confidence, data protection, copyright and certain postal and telecommunication regulations 44 . For many commentators the aspiration of maintaining privacy over one's personal information has already been lost ( Gandy, 1993 ). The organisational complexity of modern society, the controlling elements within government and business and the intrusive potential of surveillance and information processing technologies have combined to produce what some critics see as an Orwellian version of modern life. The role of information laws in face of this onslaught is ambiguous. The forces (i.e. the government's desire to monitor citizen compliance with laws and the marketer's desire to accumulate information about consumer preferences) that have precipitated a loss in privacy are embedded in the very framework of the democratic market state. A single person's desire to keep private his personal information is at odds with the way in which modern society functions; to prevent a loss of privacy a person would have to opt out of modern life altogether. A legal measure that aimed at establishing an absolute and inalienable right to privacy would require a restructuring of society itself. Viewed from this perspective laws that seek to protect informational privacy can at best temper the encroachments into private life wrought by economic and technological change. Even if one concedes that the aspiration of protecting one's personal information from outsiders is incompatible with the nature of modern society, the information law approach nonetheless assesses the extent to which laws attempt to preserve a semblance of informational privacy in light of technological change. 5.2 EconomyIn the broadest sense the economy is comprised of those institutions that provide for the production and distribution of goods and services in society 45 . Laws that affect the production and distribution of information goods and services are therefore an important element of the information law framework. In many respects the legal treatment of the information sector does not differ from other goods and services in a market economy - the ownership of outputs vests in the employer by virtue of the employment contract and worker's employment rights, which relate to terms and conditions of employment rather than ownership in the productive output, are supplemented by statute law. Insofar as this is true of information production and distribution it does not warrant specialist analysis in an information law approach. Nonetheless, the peculiar economic nature of information and the laws that result therefrom do fall within the remit of an information law approach. Intellectual property rights add a distinct layer of economic regulation, over and above contract, employment and labour law, to information goods and services. The peculiar economic characteristic of information is that it is a `public good' 46 . The two defining characteristics of public goods are that they are (a) non-rival and (b) non-excludable. A good is non-rival when one individual can consume a unit of the good without detracting, in the slightest, from the consumption opportunities available to others from that same unit ( Cornes & Sandler, 2001 , p8). Benefits that are available to all once a good is provided are termed non-excludable (e.g. streetlights) ( Cornes & Sandler, 2001 , p8). Thus information differs from tangible goods such as food and clothing (known as private goods) because it can be enjoyed by an infinite number of people without ever being finally consumed 47 . The non-rival nature of information inheres in the quantity itself - information has always been and always will be non-rival; non-excludability in contrast is an attribute that depends on both technology and social choice ( Varian, 1998 ). The history of printed literature is a case in point; prior to the invention of the printing press, information that was embodied in a written text was in effect excludable due to the labour and skill required to reproduce it. The printing press was the first invention to dramatically liberate information and it led to a divide between the physical representation of information and the metaphysical concept of information as an intangible form. Technological advancement, in the form of telecommunications, computers, broadcast and satellite transmissions have further rendered information non-excludable. Modern communication technologies make reproduction and dissemination seamless and accordingly information is, theoretically at least, approaching the status of pure public good. However, inasmuch as technology gives rise to non-excludability so too does it take it away. Encryption technologies, which make access to information conditional on payment or some other external factor counteract the liberating effect of communication and reproduction technologies and thus revive excludability. Likewise, laws that grant exclusive rights to particular individuals over information or otherwise control its dissemination achieve, through the means of institutionalised protection of legal rights, a similar end. In sum, while the non-excludability attribute of information is in theory a reality, it is nonetheless susceptible to technological and legal excludability. The public good nature of information leads to an `appropriation' problem ( Drahos, 1999 ). The economic implication of non-excludability is that the creator of information (be that author or inventor) cannot reliably achieve a return for his investment of effort and resources in the marketplace. The unit cost of reproducing information approaches zero and, under the model of perfect competition, the author or inventor will probably receive next to nothing for his work or invention. He therefore will have insufficient incentive to produce the information in the first place and so market failure ensues 48 . For economists there are two ways of overcoming the appropriation problem - government financing or intellectual property rights ( Arrow, 1962 ). Government financing of information production does not require that excludability be engineered, but instead directs economic resources to information production. Intellectual property rights, in contrast, are a market response to market failure and do necessitate the revivification of excludability. The grant of monopoly rights over exploitation of information is the manufacture of excludability by means of legal device. Providing a threat of legal sanction against persons who refuse to respect the author or inventor's rights results in the formation of a market for information outputs. Once it is accepted as the favoured model for overcoming the appropriation problem the economic analysis shifts to the extent to which intellectual property rights should subsist in the interest of overall social welfare 49 . It is precisely because information is potentially excludable that intellectual property rights present themselves as a viable option. If social behaviour and technological advancement were to seriously undermine the integrity of the intellectual property system, the public provision model would have to be resorted to as an alternative. From the above analysis the non-excludability of information is best viewed as a consequence of the invention of communication and reproduction technologies; and this non-excludability is in turn the economic basis for intellectual property rights. They are of interest to an information law approach because they add a distinct layer of economic regulation to the production and distribution of information. If one accepts that information production in the commodity form is becoming an increasingly prominent feature of overall economic production, the significance of intellectual property rights cannot be understated. An economy that relies on intellectual property rights as the underlying imprimatur of economic entitlement will differ fundamentally from one that relies on property rights in tangible objects. Intellectual property rights operate as mini-monopolies at the distribution level and therefore, by their very nature distort trade. There is also evidence to suggest that they progressively lead to the emergence of monopolistic enterprises within the overall economy 50 . Furthermore financial benefits that accrue from intellectual property rights bear no correlation to the work employed or the objective quality of the end product; instead benefits are solely determined by aggregating consumer preferences for the consumption of a single unit. Notions of labour value and use value therefore become irrelevant. Market economies in the industrial phase of economic development were predicated on excludability and rivalry of goods 51 . Adam Smith's invisible hand was supposed to act as a redistributing force - the common pursuit of self-interest through the mechanism of competitive markets in itself achieved a degree of equilibrium in the distribution of economic benefits. It is very difficult, if not impossible, to achieve the elements of a competitive market in information goods that are protected by intellectual property rights. The social structure to which it gives rise resembles more a feudal than a market society (royalties replacing rents) though in truth it probably represents a new form of social structure. If information goods continue to increase in relative importance to other sectors of the economy the prospect of the invisible hand magically levelling disparities in wealth distribution that arise in a capitalist system of production no longer presents itself. Furthermore, if it can be shown that intellectual property rights obstruct participation in the market by new actors, the original purpose of fostering independent production of innovation and cultural works will have been defeated. The information law approach seeks to assess how laws that pertain to information affect economic production and the resultant social structure. It takes intellectual property rights as the primary legal device for organising economic production and distribution of information goods and services. Intellectual property rights are so fundamentally different from conventional property rights that they are bound to (indeed already do) effect changes to the established social and economic structure. 5.3 CultureThe broad definition of culture - `the values the members of a given group hold, the norms they follow, and the material goods they create' ( Giddens, 1989 , p31) - encompasses all signifiers of meaning that a society possesses. Thus conceived, it concerns the way of life of the members of a group and is distinguishable from society , which is concerned with the interrelationships that connect individuals within a group. At this rarefied perspective legal systems and laws are simply part of the cultural and societal form rather than determinative factors in themselves 52 . Nonetheless from a more prosaic standpoint information laws can be seen to play an important role in the formation and content of cultural artefacts , such as literature, music and crafts. The two significant sets of legal rules in this regard are normative content laws (i.e. defamation, obscenity, blasphemy etc.) and intellectual property laws (particularly copyright and trademark laws). The information law approach enquires as to how laws affect both the content and the overall production of cultural artefacts. Laws that regulate particular denotative qualities of information have a direct impact on the content, and to a lesser extent form, of cultural expression. In most cases such laws are public in nature, i.e. state proscription of meaning (though defamation is a significant form of private regulation of denotation). From the standpoint of the information law approach the relevant consideration in respect of this category of laws is the extent to which they affect the content of cultural expression and the consequent flow of information in society. Whether or not their effects are desirable is a different matter, though such a question can only be addressed after first identifying what they are. In reality the first set of laws only impact on the fringes of cultural output in modern industrial societies. Liberalism has triumphed in the pubic sphere and government censorship of cultural expression that still exists effects but a small fraction of overall output. Of far greater significance are intellectual property laws, in particular copyright laws. As discussed in Section 5.2 the prospect of market failure provides an economic justification for copyright laws and under conventional economic theory their main consequence is simply to promote the production of cultural output. However for scholars of cultural studies the matter does not rest there. Coombe ( 1998 ) describes their effect as follows 53 : Intellectual property laws, by prohibiting the reproduction of vital cultural texts, disenable us from subjecting those texts to critical scrutiny and transformative appropriation. Because these texts are constitutive of the cultural milieu in which we live, constructing many of the socially salient realities we recognise, their status as exclusive properties that cannot be reproduced without consent and compensation operates to constrain communication within, through, and about the media that surround us. A number of recent publications have critically assessed the impact of copyright laws on cultural production 54 . In the main they highlight the ways in which copyright laws may be used to suppress innovative cultural forms that build on existing expression. This is particularly acute in the case of music, which more than any other art form challenges the formalism of legally drawn boundaries. Vaidhyanathan ( 2001 , p141-144) recounts how a 1991 federal court ruling in the United States effectively changed the nature of rap music. Rap music as it developed in the 1970s and `80s used melody and harmony in a different way to other forms of music; rap artists `sampled' other artists' melodies and harmonies and incorporated them as part of their own rhythm track. This was one of the defining qualities of rap music. Biz Markie, a relatively minor exponent of the art, borrowed for a composition of his own eight bars from Gilbert O'Sullivan's 1972 track `Alone Again'. Gilbert O'Sullivan sued alleging unauthorised reproduction on the part of Biz Markie. Judge Duffy granted an injunction and in the process put an end to sampling in commercial rap music. The expense and impractically of obtaining sample licenses meant that rap artists from then on had to adapt their art form to comply with the ruling if they wanted to have a chance of winning a record contract. Thus copyright law transforms art 55 . Vaidhyanathan's critique focuses on the ways in which copyright laws restrict transformative works and how the concept of the individual author, the flagstone of copyright law, is alien to non-Western cultural traditions. He advocates a looser, less acquisitive copyright system, but implicitly accepts the paradigm of market production that a copyright law system necessitates. Perelman ( 2002 ) and Bettig ( 1996 ), following the critical theory tradition, hold that the copyright regime is an aspect of a larger problem, namely an exploitative cultural industry that is concerned with profit rather than art. For them no tinkering to the fringes of the copyright regime will liberate creativity from the shackles of corporate control; copyright is to cultural capitalism, what the institution of private property was to industrial capitalism. The idea that the capitalist mode of production adulterates art can be traced to Adorno and Horkheimer's 1940's critique of the culture industry 56 . Viewed from the critical tradition copyright law is a legal device for subsuming art into the capitalist mode of production. These authors argue that art produced under such conditions tends to be supportive of the status quo and appealing to the lowest common denominator of consumer preferences. Again, copyright law is said to transform art. In sum, the information law approach questions how laws that pertain to information impact on the nature and production of cultural artefacts. Implicit to this approach is the assumption that cultural works are information. Such a reductionist depiction is not meant to underestimate the creative efforts of authors or artists, but rather recognises that the concept of originality under copyright law does not differentiate between information outputs on the basis of their cultural merit. The term `information' is used in a broad, non-legal sense throughout this article. Furthermore the information law approach does not necessarily undermine institutions such as copyright law. Rather it calls for an honest assessment of how laws impact on the production, content and distribution of cultural artefacts. 6 . The Information Law Framework The information law approach has been developed at three levels - first, information has been examined outside of its legal context, secondly the instances where the law affects information have been identified and finally the way in which the legal control of information impacts on society as a whole has been described. This section will conclude by summarising the earlier sections and sketching an outline of the overall information law framework, i.e. a framework for analysing the legal treatment of information.
Figure 3: The Information Law Framework The above diagram is a graphic representation of the information law approach developed in the preceding sections. As this is a legal analysis, information laws take centre stage. The arrow that emanates northwards from `information laws' makes the point that law affect information. The two arrows emanating from `information' denote the two key features of information - as a signal and as a representation of meaning. The public and private sub-categories refer to the two juridical sources of information laws. The curving lines (without arrows) illustrate the manner in which laws affect information, i.e. the law's aims - controlling the nature and uses of meaningful information - are both achieved by controlling signal transmission. `Information laws' are divided into public and private categories. The arrow that emanates southwards from `information laws' shows that information laws impact on society, which for analytical purposes is taken to comprise of polity, economy and culture. Because there are few precedents from which to develop a unitary legal analysis of information, it was felt necessary to begin with a very basic, non-legal dissection of what is meant by information. One may justifiably question what the relevance of such non-legal fields of study as communications theory is to legal theory. After all, if a legal analysis of energy regulation were being carried out, an understanding of the molecular structure of carbon-based fuels would be superfluous. Information is different; it is a social phenomenon, and not a natural physical quantity. It is a product of the interaction of man with his fellow man. Laws exist to regulate social phenomena, and in the case of information play a role in its creation. Thus conceived a holistic information law approach must begin by understanding the nature of information itself. Without a non-legal perspective on the meaning of information, the analysis would by hopelessly fragmented and one would have difficulty understanding the mechanistic way in which legal measures regulate information. Information was seen to comprise of two distinguishing characteristics - it is both a signal in transit and a symbolic representation of meaning. This broad conception of information is the subject matter of information law. The task of identifying all instances where information is regulated by the law was beyond the scope and ambition of this article. A complete information law analysis would ultimately address all such laws and classify them by reference to the common factors that they share. For the purposes of this article, a general scheme for classifying information laws was instead adopted. The public/private distinction was the most obvious starting point, but within that basic juridical divide further sub-categories were made. The purpose of aggregating together all laws that pertain to information was to emphasise the diverse ways in which law affects the flow of information in society. When viewed in isolation these laws seem to bear no relation to each other, but when one recognises the significance of information outside of the legal context, a commonality between laws that regulate information begins to emerge. The final level of the information law framework, namely the examination of the sociological impact of laws that regulate information, involved a shift from positivistic to normative analysis. The justification for this approach again rests on the social nature of information itself. Law both qualitatively and quantitatively affects the information that we send and receive in our daily lives; it determines who controls the flow of information and the type of information that is produced and communicated between persons. Law helps construct the social phenomenon that is information. As information plays an increasingly significant role in advanced societies, so too will law's impact on society grow. To be made fit into the existing social structure information has to be subject to stringent legal controls; the extent of law's reach and impact on daily life therefore increases in tandem with society's dependence on information. The close interrelationship between law and information and the common trajectory of their impact on society provide the rationale for the final level of the information law approach. Notes and ReferencesAbbott (1999), The World as Information, (Bristol: Intellect). Adorno and Horkheimer (1999), `The Culture Industry: Enlightenment as Mass Deception' in During ed., The Cultural Studies Reader (2 nd ed, London: Routledge). Angel and Waldron (1997), Telecommunications Law Handbook (London: Blackstone Press). Arrow (1962), `Economic Welfare and the Allocation of Resources for Invention' in Nelson ed. The Rate and Direction of Inventive Activity (Princeton NJ: Princeton University Press). Arrow (1979), `The Economics of Information' in Dertouzos & Moses ed.'s, The Computer Age: A Twenty Year Review (Cambridge MA: MIT Press). Babe (1995), Communication and the Transformation of Economics (Colorado: Westview Press). Bar-Hillel and Carnap (1953), `Semantic Information' 4 British Journal for the Philosophy of Science 147. Bagdikian (2000), The Media Monopoly (Boston: Beacon Press). Beales , Craswell and Salop (1981), `The Efficient Regulation of Consumer Information' 24 J of Law and Economics 491. Bell (1976), The Coming of Post-industrial Society: A Venture in Social Forecasting (Harmondsworth: Penguin). Benkler (1998) `Overcoming Agoraphobia: Building the Commons of the Digitally Networked Environment' 11 Harvard J of L & Tech 287. Benkler (1999) `Free as the Air to Common Use: First Amendment Constraints on the Enclosure of the Public Domain' 74 NYULR 354. Benkler (2000), `From Consumers to Users: Shifting the Deeper Structures of Regulation Towards Sustainable Commons and User Access' 52 Fed Comm LJ 561. Benkler (2001a), `The Battle over the Institutional Ecosystem in the Digital Environment' 44 Communications of the ACM 84. Benkler (2001b), `Siren Songs and Amish Children: Autonomy, Information and Law' 76 NYULR 23. Besen (1990) ,`An Introduction to the Law and Economics of Intellectual Property' 5 J of Economic Perspectives 3-27. Bettig (1996), Copyrighting Culture: The Political Economy of Intellectual Property (Colorado: Westview Press). Boyle (1996), Shaman, Software and Spleens: Law and the Construction of the Information Society (Cambridge MA: Harvard University Press). Bull (1985), De Fundamentele Problemen van het in Informatierecht [The Fundamental Problems of Information Law] (Frankfurt: Zwolle). Campbell (1982), Grammatical Man: Information, Entropy, Language and Life, the Story of the Modern Revolution in Human Thought (London: Penguin). Castells (2000), The Information Age: Economy, Society and Culture (London: Blackwell). Cherry (1978), On Human Communication (3 rd ed, Cambridge MA: MIT Press). Clark (1951), Conditions of Economic Progress (London: Macmillan). Cohen-Jehoram (1985), `Auteurs, Media en Informatierecht' [Copyright, Media and Information Law] in Autersrecht/AMR. Coombe (1998), The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law (Durham: Duke University Press). Cornes and Sandler (2001), Externalities, Public Goods and Club Goods (Cambridge: Cambridge University Press). Day (2001), The Modern Invention of Information: Discourse, History and Power (Illinois: SIU Press). Demsetz (1970), `The Private Production of Public Goods' 13 J of Law and Economics 293. De Long and Froomkin (1998), `Speculative Microeconomics for Tomorrow's Economy' in Kahin & Varian (ed.'s) Internet Publishing and Beyond: The Economics of Digital Information and Intellectual Property (Cambridge MA: MIT Press). De Saussure (1966), Courses in General Linguistics Wade Baskin (trans.) (New York: McGraw-Hill). De Smith , Woolf and Jowell (1995), Judicial Review of Administrative Action (London: Sweet & Maxwell). Dommering (1991), `An Introduction to Information Law: Works of Fact at the Crossroads of Freedom and Protection' in Dommering & Hugenholtz (ed.'s), Protecting Works of Fact: Copyright Freedom of Expression and Information Law, (The Hague: Kluwer Law). Dommering (1992) `Information Law and Themes of This Book' in Altes, Dommering, Hugenholtz, Kabel (ed.'s) Information Law Towards the 21 st Century (The Hague: Kluwer Law). Drahos (ed) (1999), Intellectual Property (Aldershot: Ashgate). Dworkin (1988), The Theory and Practice of Autonomy (Cambridge: Cambridge University Press). Easterbrook (1981), `Insider Trading, Secret Agents, Evidentiary Privileges and the Production of Information' Supreme Court Review 301. Elkin-Koren (1996), `Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace'14 Cardozo Arts and Entertainment LJ 215. Fiske (1990), Introduction to Communication Studies (London: Routledge). Fiss (1996), Liberalism Divided: Freedom of Speech and the Many Uses of State Power (Colorado: Westview Press). Gallie (1966), Peirce and Pragmatism (New York: Dover Publications). Gandy (1993), The Panoptic Sort: A Political Economy of Personal Information , (Colorado: Westview Press). Giddens , (1989) Sociology (Cambridge: Polity Press). Goldie and Pinch (1991), Communication Theory (Cambridge: Cambridge University Press). Gordon (1992), `On Owning Information: Intellectual Property and the Rationality Impulse' (1992) 78 Virginia LR 149. Gordon (1993), `A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property' 102 Yale LJ 1553. Habermas (1984), The Theory of Communicative Action (London: Heinemann). Hartley (1928), `Transmission of Information' 7 Bell Technical Journal 535. Hayek (1945), `The Use of Knowledge in Society' 35 American Economic R 520. Horwitz (1982), `The History of the Public/Private Distinction' 130 U of Penn LR 1423. Innis (1985), Semiotics: An Introductory Reader (Melbourne: Hutchinson). Kitch (1983), `The Law and Economics of Rights in Valuable Information' 9 J of Legal Studies 683. Landes andPosner (1989), `An Economic Analysis of Copyright Law' 18 J of Legal Studies 325. Lloyd (2000), Information Technology Law (3 rd ed, London: Butterworths). Losse (1997), `A Discipline Independent Definition of Information' 48 J of the American Society for Information Science 254. Lyon (1986), The Information Society (London: Polity Press). Machlup and Mansfield (ed.'s) (1983), The Study of Information: Interdisciplinary Messages (New York: Wiley & Sons). Marett (2002), Information Law in Practice (Aldershot: Ashgate). Merges (1995), `The Economic Impact of Intellectual Property Rights: An Overview and Guide' 19 J of Cultural Economics 103. Negri and Hardt (2000), Empire (Cambridge MA: Harvard University Press). Nelken (1996), Law as Communication (Aldershot: Dartmouth). Netanel (1996), `Copyright in a Democratic Civil Society' 106 Yale LJ 283. Netanel (1998), `Asserting Copyright's Democratic Principle in the Global Arena' 51 Vanderbilt LR 217. Netanel (2000), `Market Hierarchy and Copyright in our System of Free Expression' 53 Vanderbilt LR 1879. Nyquist (1924),'Certain Factors Affecting Telegraph Speed' 3 Bell Systems Technical Journal 324. Ogden and Richards (1949), The Meaning of Meaning (London: Routledge Kegan Paul). Perelman (2002), Steal This Idea: Intellectual Property Rights and the Corporate Confiscation of Creativity (New York: Palgrave). Posner (1998), The Economic Analysis of Law (5 th ed, New York: Aspen). Priest (1994), An Information Framework for the Planning and Design of the `Information Highways': The Character of Information (Office of Technology Assessment, Project on Intellectual Property). Reed , (2000) Computer Law (4 th ed, London: Blackstone Press). Rifkin (2000), The Age of Access: How the Shift from Ownership to Access is Transforming Modern Life (London: Penguin). Riley (2001), `Silver Signals: Twenty-five Years of Screening and Signalling' 39 J of Economic Literature 432. Robertson and Nicol (1992), Media Law (London: Penguin). Schiller (1988), `How to Think about Information' in Mosco & Wasko (ed.'s) The Political Economy of Information (Madison: University of Wisconsin). Schiller (1997), `The Information Commodity' in Davis, Hirshl, Stack (ed.'s) Cutting Edge: Technology, Information, Capitalism and Social Revolution (London: Verso). Schmijt (1998), `Information Law: From Concentric Circles to Pimple Theory' in Kabel ed., Intellectual Property and Information Law (The Hague: Kluwer Law). Shannon (1948), `A Mathematical Theory of Communication' 27 Bell Technical Journal 656. Toffler (1980), The Third Wave (New York: Morrow). Touraine (1974), The Post-industrial Society (London: Wildwood House). Towse (2001), Creativity, Incentive and Reward (Cheltenham: Edward Elgar). Vaidhyanathan (2001), Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (New York: New York University Press). Varian (1998), Markets for Information Goods , California Wacks (1989), Personal Information: Privacy and the Law (Oxford: Clarendon Press). Watt (2000), Copyright and Economic Theory (Cheltenham: Edward Elgar). Westin (1967), Privacy and Freedom (London: Bodley Head). Yoo (2000), `Copyright and Democracy: A Cautionary Note' 53 Vanderbilt LR 1933. Young (1971), Information Theory (London: Butterworths). 1 * My thanks to Uma Suthersanan and two anonymous referees for the helpful comments on earlier drafts. See generally Machlup & Mansfield (1983), Abbott (1999) and Day (2001). 2 Schiller (1988, p28) notes that the 1933 Oxford English Dictionary definition of information gave no hint as to the shifts beginning in the conceptualisation of information and that the 1933 definition of information was largely unchanged since its first use the English language at the time of Chaucer. 3 Dommering (1991) and Dommering (1992) contain the outline of an information law approach. The Institute for Information Law at the University of Amsterdam and the Information Law Institute at New York University Law School both specialise in the study of information law. Despite the existence of these institutions and publication of such texts as Marett (2002) the project of articulating a conceptual framework for information laws has been neglected since the pioneering work of the Dutch scholars. 4 Eg Reed (1996) and Lloyd (1997). 5 Dommering (1991, p3) puts forward two models of legal specialisation - 1) a posteriori - specialisation from the concrete to the abstract, e.g. computer law; 2) a priori - specialisation from the abstract to the concrete, e.g. human rights law. He suggests that information law is a combination of both these approaches. 6 Cohen-Jehoram (1985). Bull (1985) also sketched the outlines of an information law approach. For an English language discussion of the early work in this field see Schmijt (1998). 7 Dommering (1991, p10) - `It takes information and the communication process as the starting-point regardless of the information technology. The law regulates social and economic functions, but not technological phenomenon. Why does media law begin with the press and data protection with the computer?' 8 See generally Posner (1998). 9 Easterbrook (1981) and Kitch (1983). 10 The phrase `information concept' is preferred so as to emphasise the epiphenomenal nature of information, i.e. information is neither matter nor energy, instead information can be said to be the essence of many important economic and social activities - see Babe (1995, p17). 11 Losse (1997) proposes a general definition of `information' as `the values within the outcome of any process' where values are defied as `a variable's attribute or characteristic'. 12 See Babe (1995, p34) and Machlup & Mansfield (1983, p649-50). 13 See generally, Young (1971) and Goldie & Pinch (1991). 14 The original term for this field of study was the `mathematical theory of communication' as used by Claude Shannon in his seminal paper on the topic (Shannon (1948)). 15 Shannon of course did not develop his theory out of thin air. He was building on, inter alia , the work of previous Bell Laboratory scientists Nyquist and Hartley. Nyquist (1924) referred to what was being transmitted on telephone cables as `information' and postulated that the two fundamental factors governing speed of data transmission are shape of signal and the choice of code used. Hartley (1928) built on the idea of information as physical rather than a psychological quantity. 16 Fiske (1990, p7) defines noise as `anything that is added to the signal between its transmission and reception that is not intended by the source.' 17 The regulation of telecommunications infrastructure, radio, broadcasting and satellite transmission and cable services is an exception - see Section 4 below. 18 Some commentators are critical of the way in which the Shannon model has migrated into disciplines that are concerned with semantic information, e.g. Cherry (1978, p170). Machlup & Mansfield (1983, p56) describe the extension of information theory in this manner as `a methodological disaster'. 19 Most communication scholars would accept the proposition that semantic information cannot be measured. Nonetheless attempts have been made to develop ways of measuring meaning, most notably by Bar-Hillel & Carnap (1953). Their model, however, measures only a very narrow syntactical element of meaning. 20 See generally, Cherry (1978) and Innis (1985). A law and semiotics school has grown over the past 20 years, see Nelken, (1996). This school views law itself as a conveyor of meaning. By contrast my analysis in this section is centred on semiotics in general and how it informs an information law approach. 21 The two principle schools are the American, as represented by the work of C.S. Peirce and his followers (Gallie, 1966) and the French represented by the Swiss man de Saussure and his adherents (de Saussure, 1966) 22 In de Saussure's model the terms `signifier', `sign' and `signified' are used in place of `reference', `symbol' and `referent' respectively - see Fiske (1990, p44) for a brief overview of this and other models. 23 Bell (1976) introduces the idea of axial principles and structures as a means of constructing conceptual frameworks. Thus, for Marx the production of commodities is the axial principle and for Max Weber the ethic of rationalisation of the conduct of life is the axial principle. In the information law approach transmission and meaning represent a co-axial structure to explain the application of legal rules to information - the meaning axis is what determines legal intervention and the transmission axis is the means by which legal rules give effect to information policy. 24 The public/private divide is of relevance to both political and legal theory - see Horwitz (1982). In political theory the distinction is central to Marx's theory of social development: equality in the public sphere is the outcome of a bourgeois revolution whereas equality in the private sphere is the outcome of a social revolution. Under legal doctrine the jurisdiction of courts to entertain judicial review proceedings is an example of the distinction in operation - they will only be entertained where the respondent is a public body exercising a public function - see generally De Smith, Woolf & Jowell (1995). 25 Strictly the rules relating to discovery and disclosure in trials involve the flow of information between private actors, however as these rules apply in the context of a publicly mediated trial one can fairly include them in the second category. 26 The duty not to disclose confidential information arises from a combination of factors. Aside from granting property rights to inspire creation of such information there is also the matter of respecting the right of privacy - see Robertson & Nicol (1992, Chapter 4) 27 The state may also hold intellectual property rights, e.g. Crown copyright. 28 The economic theory of asymmetric information has been the joint work of the economists George Akerlof, Joseph Stiglitz and Michael Spence - see, Riley (2001) for an overview of the literature. 29 The Act was granted royal assent in November 2000 but it will not come into full effect until January 2005. 30 See generally Angel & Waldron (1997). 31 Professor Yochai Benkler has, in a series of articles, proposed a holistic approach to understanding regulation of the communications environments. He divides it into three layers - the physical infrastructure layer, the logical layer and the content layer. The principle aim of his thesis is to illustrate how legal control (i.e. ownership) of information flows is a combination of control over each of these layers -see Benkler (2001a), (2000) and (1998). 32 This identifying catchphrase of `cyberlibertarians' is generally attributed to a speech by Stewart Brand at a Hacker's Conference in 1984. 33 Amongst the first to recognise this phenomenon was Clark (1951) (first published in 1939) who analytically divided the economy into three sectors - primary (agriculture, mining), secondary (manufacturing) and tertiary (services). He argued that as economies developed an increasing degree of economic activity would take place in the services sector. Toffler (1980) further developed this theme. 34 Touraine (1974), which was published shortly after Bell's work, dealt with many of the same themes, though was more sceptical in relation to the supposed end of class struggle. 35 For a contrasting view of the likely outcome of the informationalisation of production see Negri & Hardt (2000). 36 Price information is a third distinct category of information good, however it is conceptually distinct from the other two as, under conventional economic theory, price information is seen as a necessary element of the market itself. Hayek (1945) was amongst the first economists to treat the pricing facility of market economies as an embodiment of knowledge of consumer preferences. 37 Priest (1994) refers to this characteristic of information as `intrinsic co-production'. 38 Material goods are of course still important. The change is best viewed in terms of technological progression in capitalist societies. The replacement of human labour by machines and the improvement in economic organisation leads to a situation where the material needs of society can be met by a comparatively small proportion of the labour force. Under both market and Marxist theory in order for capitalism to survive an end of scarcity it must occupy sections of human activity not previously part of the market system. Therefore one sees a massive growth in entertainment and `experience' industries, whose product is essentially information. Rifkin (2000) argues that the transformation into an information society is leading to the disintegration of the phase of industrial capitalism where private property was the defining social structure of human relations; instead, he argues `access' rights and `gatekeepers' are emerging in its place. 39 By way of analogy the institution of private property and the enforceability of contracts - both legal constructs - were a sine qua non of industrial capitalism. In information societies intellectual property laws perform a similar function. 40 See generally Fiss (1996). 41 See Benkler (2001b), Benkler (1999), Netanel (2000), Netanel (1998), Netanel (1996) and Elkin-Koren (1996). 42 Netanel (2000, p1905-1914). Yoo (2000) provides an opposing view by challenging the assumption that there is a direct relationship between increased copyright law protection and a reduction in free speech. 43 Copyright laws are primarily concerned with the grant of economic rights and accordingly most of their effects are economic in nature, e.g. promoting production or fostering market concentration. However the rights granted by copyright law are not confined to economic protection of works and can also be used for overtly censorious purposes, e.g. in the American case, Religious Technology Centre v Netcom On-line Communications Services Inc 932 F Supp 1231 (N.D. Ca. 1995), the court granted a restraining order against an online journal that published postings of Church of Scientology religious materials interspersed with criticism by a disaffected former member on the grounds that such postings were an infringement of the Church's copyright. 44 In Britain there is no general common law right of privacy; protection is therefore piecemeal - see Wacks (1989). 45 See Giddens (1989, Chapter 15). 46 There is a large body of literature on the public good phenomenon in general - e.g. Cornes & Sandler (2001), Demsetz (1970) - and specifically in relation to intellectual property, e.g. - Watt (2000), Merges (1995) and Besen (1990). 47 Watt (2000, p5) draws the important distinction between the delivery good in which information is displayed (e.g. book, compact disc) and the information itself; the latter is susceptible to depletion whereas the former is not. 48 This conclusion is based on the axiom of classical and neo-classical economics that holds that an incentive is required for humans to engage in production. In reality a great deal of informational production irrespective of direct material motivation. 49 The classical exposition on the balancing of intellectual property rights from the perspective of allocative efficiency is Landes & Posner (1989). Because of the practical difficulty of acquiring accurate empirical data on the effects of intellectual property protection the optimum level of protection cannot be definitively ascertained. For instance Watt (2000, p3-4) notes `Excluding non-paying consumers from access to public goods by means of a legal apparatus is extremely costly, and in any case is of doubtful social value, since non-paying consumers do not impose direct cost on either paying consumers or creators. Hence it is highly unlikely that any mechanism providing absolute protection would ever be socially optimal.' 50 Empirical indicates that there is a preponderance of market concentration in certain information good sectors (e.g. news media, music and entertainment) see Bagdikian (2000). 51 De Long & Froomkin (1998 p9) identify excludability, rivalry and transparency of goods as three pre-requisites of a market economy. 52 The interdisciplinary study of law and culture is in its infancy - see generally Coombe (1998). 53 See also Gordon (1993) and Gordon (1992). 54 Perelman (2002), Vaidhyanathan (2001) and Bettig (1996). For a conventional economic assessment of the relationship between copyright laws and culture see Towse (2001). 55 Perelman (2002, p17-18) argues that rock and roll emerged as a result of the overzealous protection of copyright by the American Society of Composers, Authors, and Publishers (ASCAP). Broadcast Music Incorporated (BMI) ceased broadcasting ASCAP's music in 1941 in response to the high fees charged by ASCAP. BMI turned instead to imported Latin American rumba and samba music and recruited blues, country and gospel musicians, which ultimately led to the birth of rock and roll. 56 Adorno and Horkheimer (1999). |
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