Abstract

Christopher Arup. Capturing the Value of Australian Online Content: Mapping the regulatory domain.

The report evaluates the strategies proposed for gaining a share of the value generated by the content of new on-line media. It appreciates the promise which the media itself holds to provide access to those who wish to produce, distribute and use content. Yet it argues that there is a need for regulation to ensure that some of the benefits of on-line service content production and content provision are captured by the Australian locality. The report notes that the strategy of industry-specific regulation is being undermined by developments in the technology itself as well as by modalities of governance prevailing both nationally and internationally. In particular, it notes the impact of supra-national processes such as the General Agreement on Trade in Services. The emerging modalities of regulation are identified as intellectual property and competition law regulation. Intellectual property is extending its reach into the new media. It is moving beyond its preoccupation with reproduction of works fixed in a material form, turning its attention to the communication of works and other subject-matter which is provided on-line. The World Trade Organisation started this process with the Agreement on Trade-Related Intellectual Property Rights. It has been given a significant spurt along by the recent World Intellectual Property Organisation treaties, the Copyright Treaty and the Performances and Phonograms Treaty.

While the law of intellectual property may be a necessary protection for authors and their publishers in a world of greatly enhanced manipulation and distribution of their works, extension of its powers also gives rise to concerns in some quarters. Internet access providers are concerned that they will be held responsible for copyright contraventions. Moreover, public access organisations are apprehensive that intellectual property law will provide a means to control access to an increasingly important resource. It brings into sharp relief the qualifications placed in the past on rights such as non-voluntary licensing, and exceptions to infringement such as fair dealing.

If these concerns cannot be met in the body of intellectual property law itself, competition law is seen as offering a check on abuses of its power. Competition law is also increasingly being enlisted to promote access to other 'essential facilities' of the on-line media. But competition law is only now translating its broad concepts and processes into the situation-specifics of the on-line media markets. It must weigh the economies of scope achievable through convergence against the needs of independent producers, providers and users. Paradoxically, it must become more particularised if it is to fill the gap in regulation. Furthermore, because the on-line media are increasingly transnational in operation, it too must pursue the potential for multilateral regulatory coordination and even standardisation.