Mapping global IP norm making in the digital age in the light of sustaining global public goods

The advent and widespread of digital technologies have had and continue to have various repercussions for intellectual property (IP) protection. The possibilities of the digital media format to produce perfect copies, to communicate instantaneously to millions, and to create around and on top of existing (mostly copyrighted) content are but a few of the features associated with digital technologies that have caused deep disruptions in the conventional IP system and its balances, which were precarious even in the offline/analogue age. The paper briefly maps these shifts. Its core interest lies however with the responses within the IP-regulating institutions and with the battles of the stakeholders triggered by the digital (r)evolution. It asks how traditional state and non-state actors have positioned themselves in the fight to secure extended and efficiently enforced IPRs in cyberspace – especially copyright – and how others resist this process and attempt counteraction.
Against the backdrop of addressing these questions, it is the aim of the paper to contemplate the provision of global public goods in this messy environment driven by lobbying interests and clubs of countries and defined by proliferating forms of fragmented governance. Our hypothesis is that the sustainable provision of essential global public goods, such as access to culture, is only made more difficult and that the present global IP institutional architecture does not provide suitable avenues for addressing fundamental public interest issues in cyberspace. This is on the one hand due to the forcefully endorsed interests of the industry in manifold forums and at all levels of governance (international, regional and bilateral). On the other hand, it is the result of the complexity of issues, which go beyond copyright per se but involve network regulation, extra-territorial effects of national regulation and industry self-regulation, to mention but a few. Through these other paths, the actual policy space available may already be substantially reduced. It may appear also that freedom of information and its institutional counterparts of pluralism and diversity are somewhat ranked lower in the priority lists of developing countries and some advocacies, especially in comparison to issues of global health and biodiversity. Other actors have on the other hand powerfully criticized the current copyright regime as unfit to accommodate contemporary forms of creativity, creative expression and co-operation in the digital environment, and have put forward alternative models, such as notably the creative commons licence. Still, these discussions have not led to any concerted action by developing countries and/or civil society to address issues of global institutional design in IP, as efforts are spread in multiple domains and packaged together with other questions. The broad theoretical framework of the paper will be that of new governance theories, and their antecedent of legal pluralism.