The “Declaration for the Future of the Internet”: What Does it Mean for Copyright Industries?

On April 28, with little advance notice, an announcement was released by various governments informing the world that they had just signed a “Declaration for the Future of the Internet”. In all, sixty-one countries signed this grandiose-sounding document, ranging from Albania to Uruguay. Signatories notably included the US, which was the sponsor of the Declaration, the 27 countries of the EU, the UK, Japan, Canada, Australia, New Zealand, and four of the five Nordic countries. These constitute what one might loosely consider the “western alliance”, but signatories also included several countries in Latin America, a couple of African states, Ukraine, Georgia, Moldova, Serbia, Israel and even Micronesia, Palau and the Marshall Islands. Notably absent were not only Russia and China, against whom the Declaration appears to be aimed, and a number of states where control of the internet is part of the control mechanisms exercised by those regimes (think Iran, Saudi Arabia, Syria, the Gulf States—in fact no government in the Middle East save Israel signed on), but also some states one would have thought might have joined, such as Norway, India, South Korea, Switzerland or any of the ASEAN states. Indeed, except for Japan and Taiwan, there were no signatories from Asia.

The Declaration has been percolating below the surface in Washington for a few months and was almost rushed into existence last December in the form of an “Alliance for the Future of the Internet”, associated with President Biden’s virtual “Summit for Democracy” held December 9-10. At the time there was strong pushback from various quarters, not the least because of a lack of public consultation with stakeholders plus a concern that it would lead to a splitting of the internet by creating at least two camps, those in the “Alliance” and those not. For example, one stipulation in earlier drafts was that signatories should only use equipment from “trustworthy suppliers”. (meaning, in effect, not from Huawei). In the end, the Alliance was not unveiled at the Summit as it was clearly not ready for prime time. Now, reworked, it has emerged as a non-binding declaration.

So what does it do, what does it not do, and what impact will it have on creators and the content industries who are, after all, major stakeholders when it comes to the internet and digital trade? First of all, while it sets out a number of broad principles considered to be desirable for the governance of the internet, it creates no obligations and has no implementation or enforcement mechanism. The principles are hard to argue with; indeed, they are generally laudable, although “freedom” always has to be balanced with responsibility, of which there is little mention. On its website, the US Department of State indicates that the key principles include commitments to;

• “Protect human rights and fundamental freedoms of all people;
• Promote a global Internet that advances the free flow of information;
• Advance inclusive and affordable connectivity so that all people can benefit from the digital economy;
• Promote trust in the global digital ecosystem, including through protection of privacy; and
• Protect and strengthen the multi-stakeholder approach to governance that keeps the Internet running for the benefit of all.”

The EU’s interpretation of the Declaration adds “contestability of online platforms, and…fair competition among businesses.” By “contestability” (a strange word drawn from the Declaration itself) I assume the press release is referring to competition between online platforms. (An astute reader has clarified the term contestability for me–see below). Canada proclaimed that the Declaration expresses its objectives for an internet that is “open, trusted, interoperable and secure” that “fosters democratic values and respect for human rights.” The phrase “open, free, global, interoperable, reliable, and secure” is a kind of buzzword that appears repeatedly throughout the document. I am sure that other signatories also issued their own statements interpreting the significance of the Declaration. In fact, it is so broad that just about everyone can find something in it to support, except perhaps the countries against whom it is primarily aimed, notably Russia and China. This statement, for example, is surely aimed at Russian political interference in the last US presidential election.

Signatories agree to;

“Refrain from using the Internet to undermine the electoral infrastructure, elections and political processes, including through covert information manipulation campaigns.”

Likewise, against whom other than China could this commitment be directed?

Signatories agree to;

“Refrain from misusing or abusing the Internet or algorithmic tools or techniques for unlawful surveillance, oppression, and repression that do not align with international human rights principles, including developing social score cards or other mechanisms of domestic social control or pre-crime detention and arrest.”

The Declaration even enlists the internet in the fight against global climate change.

That is what it does. What it does not do is directly address the important issue of platform accountability although there is a tangential reference to the fact that “the once decentralized Internet economy has become highly concentrated and many people have legitimate concerns about their privacy and the quantity and security of personal data collected and stored online. Online platforms have enabled an increase in the spread of illegal or harmful content that can threaten the safety of individuals and contribute to radicalization and violence.” “Freedom of expression” and the “free flow of information” are not absolutes even in the most democratic of societies. Reasonable limits to curb defamation, online bullying, hate speech, incitement of violence and other abuses, including disinformation and misinformation are also part of the democratic social contract, but the Declaration just skips over these nuances in laying out its principles. I realize it can be a fine line between legal constraints in a democratic society and the abuse of these constraints by autocratic regimes, but it is not impossible to find language that conveys these distinctions.

Fortunately, what the Declaration also does not do is include any reference to Section 230-like language, such as was included in the US-Japan Digital Trade Agreement or the new NAFTA (USMCA). These agreements tried to immunize platforms from civil liability for content hosted (and sometimes promoted by them) on their platforms by including terminology that required an interactive computer service (i.e. digital platform) to not be treated as an information content provider in determining liability for harms. In other words, platforms could duck any responsibility for third-party content they carry and promote. (Both Canada and Japan did an end-run around this provision by inserting a caveat that allowed them to implement this commitment through existing legal doctrines applied through judicial decisions, thus preserving secondary liability.)

While the lack of any reference to platform immunity is a positive, unfortunately the Declaration also fails to pro-actively affirm the rights of creators in the digital realm, and contains some language that could be considered problematic from the perspective of copyright-holders. The internet has proven to be both a boon as well as a major challenge to copyright industries and creators. While there is lip service to creators in the document, with the Declaration noting that the internet brings new audiences to artists and creators, it then goes on to talk about “unfettered” access to knowledge for “everyone”. I am not sure of the intent of this wording, but it could be misused by anti-copyright elements to oppose legitimate licensing requirements for access to copyrighted content.

Another concern arises in the section of the Declaration dealing with “A Global Internet”, where there is a reference to net neutrality that needs to be carefully interpreted.

Signatories should;

“Refrain from blocking or degrading access to lawful content, services, and applications on the Internet, consistent with principles of Net Neutrality subject to applicable law, including international human rights law.”

Again, there is a risk that this language could be misused by opponents of site blocking or other measures taken to combat digital piracy and unauthorized transmissions. Net neutrality has been trotted out in the past by anti-copyright elements as a reason to oppose site blocking. However, I take some comfort in inclusion of the adjective “lawful” in the commitment. Site blocking as a means to fight online piracy has been instituted in a number of countries that are signatory to the Declaration. This is done either through a judicial or quasi-judicial process or a transparent administrative mechanism, and has no impact on transmission of lawful content, nor does it interfere with net neutrality.

Finally, there is one other reference in the Declaration that may provide some comfort to digital content producers. It references malware and scams, often distributed through pirated content.

Signatories will:

“Promote the protection of consumers, in particular vulnerable consumers, from online scams and other unfair practices online and from dangerous and unsafe products sold online”

Many of these scam artists access consumers, including vulnerable consumers, through Trojan Horses inserted into pirated content, as I wrote about a few years ago. (“The Year of the RAT-Beware”). Legitimate content is the antidote.

At the end of the day, there are some scraps in this document for creators, but not many. It is clear that there was little consultation with a group that is among the prime users of the internet and is a prime stakeholder in its governance. As a statement of general principles, the Declaration is unlikely to do much harm, or frankly, much good. No-one can argue with basic human rights, freedom of expression—within reasonable limits, protection of privacy, and equality of access to the internet. How these lofty goals will be achieved in practice is another question.

It would have been preferable to have had a more inclusive document that better reflected the interests of stakeholders, including the content industries, but the intent seemed to be to get a statement of principles “out there” as quickly as possible. With no concrete action plan or any firm commitments attached to it, it may simply be a bit of window-dressing that is easy for countries to commit to, an internet “vision statement” as it were. It is too bad that vision did not include more specific references to the interests of the creators and content industries that produce the digital content that makes the internet the “go to” forum for most of the world’s connected population.

© Hugh Stephens, 2022. All Rights Reserved.

This blog has been updated to clarify the meaning of the term “contestability” in the 4th paragraph. With thanks to Simon Carne.