1. Setting the Scene: A Few Remarks

The international law of culture is a complex domain that encompasses a vast amount of treaties. They are both an expression of “cultural nationalism” as the right of the nation-state to protect its own culture and of “cultural internationalism” as the right of the international community to protect components of common human culture,^{Footnote 2} of the past and present, in times of war and peace. This, of course, is a highly stylized picture, which masks the complexity of the legal norms and institutions,^{Footnote 3} as well as the various contentions around the definitions of what culture is, what a nation is and whom culture belongs to, as well as around the underlying sets of rights and how they can be enforced.^{Footnote 4}

Globalization as the process of intensifying the movement of goods, services, capital, people, and ideas across borders has only made things more complex and contentious. On the one hand, it is evident that the nation-state is no longer the exclusive forum defining cultural policies. The production of cultural policy now happens across many sites and with the participation of various actors, many of them not related to the state, such as in civil society or indigenous group networks. On the other hand, the inherent duality of cultural goods and services as such that have economic value and can be traded, while being by their very nature “vehicles of identity, values and meaning,”^{Footnote 5} has meant that both economic and noneconomic interests are constantly affected.

In this context, it should be stressed that law-making, in particular at the international level, has not progressed with similar speed in these two areas. The institutionalization of economic globalization has advanced much more swiftly and led to closer, more binding forms of international cooperation, epitomized above all by the rules of the World Trade Organization (WTO). In this evolution, there have been only scant attempts to reconcile the two sides of cultural goods and services and the policies targeted at them. The majority of cultural instruments have above all strived to secure carve-outs where states can assert their sovereignty on cultural matters.^{Footnote 6}

Although many have argued that international law is in crisis and there is little if no movement ahead,^{Footnote 7} the past decade has been marked by significant developments in international cultural law. It suffices to mention three recent and key acts of this proactive standard setting: In 2003, delegates of 190 countries adopted the Convention on the Safeguarding of the Intangible Cultural Heritage;^{Footnote 8} in 2005, also under the auspices of the United Nations Educational, Scientific and Cultural Organization (UNESCO), agreement was reached on the Convention on the Protection and Promotion of the Diversity of Cultural Expressions,^{Footnote 9} and in 2007, the General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples.^{Footnote 10}

What appears to be a common feature of these acts is that they are relatively broadly formulated and definitively go beyond trade in cultural objects. The 2005 UNESCO Convention on Cultural Diversity has particularly high goals. It aims at nothing less than the sustainability of diversity of cultural expressions, taking a comprehensive and dynamic perception of culture. This is a marked shift from the defensive slogan of “cultural exception,” which dominated the trade and culture discourse for some 30 years, during and after the WTO Uruguay round of negotiations (1986–1994).^{Footnote 11}

Unfortunately, even this bolder act of international treaty-making fails to provide guidance as to the suitable tools to be applied in order to better serve the global public good of a diverse cultural environment. The reasons for this are multiple. An important one relates to the longer narrative of juxtaposing trade and culture and the actual political battle triggered by the diverging interests on matters of trade and culture during the Uruguay round of negotiations, which led to the establishment of the WTO.^{Footnote 12} The second source of disappointment is the very act of the 2005 UNESCO Convention on Cultural Diversity. Although the Convention had an incredibly ambitious agenda and was widely applauded at the outset, with the benefit of hindsight, its impact can be assessed as modest.^{Footnote 13} We do not (as yet) see any legal or policy reform, neither as a result of the Convention’s own implementation efforts,^{Footnote 14} nor as to the Convention’s effect on the WTO regime, which it was supposed to counterbalance.^{Footnote 15} What the UNESCO Convention as a minimum does is to confirm (yet again) national sovereignty in cultural matters and preserve the status quo.^{Footnote 16}

This comes as no surprise, however, considering the complexities in the matrix of trade, culture, media, intellectual property, and human rights^{Footnote 17} and the starkly different sensibilities of the negotiating parties.^{Footnote 18} It is also fair to say that the global cultural policy discourse has been marked from its outset by a deeply convoluted understanding of the effects of trade, and more broadly of economic globalization, on culture.^{Footnote 19} The common (and often loud) statements are that cultural diversity is becoming impoverished and almost extinguished as the globalized flow of easy entertainment coming from Hollywood dominates and homogenizes.^{Footnote 20} The perceived peril for small art productions and local and indigenous culture is deemed immense and worthy of the state’s counteraction. This picture is conventionally seen as being black and white; the many nuances of the complex commerce and culture interlinks are often missed out. Parties on both sides find examples to support their positions. Exponents of cultural protectionism tend to pick up their facts from the film markets, where the United States clearly dominates and where the power of big budget and aggressive marketing is self-evident. The free-market proponents make their case by using examples of local musicians gone global or the success of documentary productions.^{Footnote 21} While the truth is somewhere between the two extremes,^{Footnote 22} the discussion on “trade” and “nontrade” values is so extremely politicized, it renders any practical solution impossible.^{Footnote 23} Answers to critical questions such as “diversity of what?” and “diversity how?” remain unanswered too. This is regrettable as cultural diversity as a global public good does have its virtues and may offer a so-far unprecedented platform to actually address essential cultural concerns at the international level.

2. The Digital Disconnect

Regardless of the success so far or the potential for success of all these instruments at the international level, regardless also of their underlying justifications in the sense of whether it is right to protect culture through the nation-state, and very often against another culture,^{Footnote 24} the central argument this article aims to make is that they are all grounded in the analog and offline age—they are “culture law 1.0.” Even the newer international treaties, referenced at the beginning of this article, do not mention digital technologies as an essential channel for their implementation. What is more, their drafters failed to consider the broader societal effects of digital technologies and the Internet in particular.

Describing the “digital” is not trivial, as it has triggered and continues to cause many and multidirectional effects.^{Footnote 25} For the sake of brevity, I use the concept of a transformed “information and communication environment,” as so aptly developed by Yochai Benkler.^{Footnote 26} This terminological shortcut allows us to unpack for the purpose of the article, all those changes that are associated with the affordances of digital technologies, such as instantaneous communication to millions at basically no cost, low threshold of participation, perfect copies, no tangible medium, no scarcity in cyberspace, and completely different organization of information in cyberspace. But also and more importantly, it enables us to refer to the societal implications of these possibilities, which in a most immediately relevant way, transform the very ways we create, distribute, access, use, and reuse cultural content; the ways we participate individually or as part of a group in cultural processes; as well as change the transparency of cultural symbols and the ways they circulate in local and global contexts.^{Footnote 27}

Yet, it should be clear that I do not mean this as a sort of web-utopianism and a conception of digital technologies as a panacea for sustaining and enriching cultural practices. Indeed, many of the early cyberhype theories have not found enough support in reality.

One of them, the so-called long tail theory, preached naturally generated diversity, as the reduced barriers to entry allow new market players to position themselves and make use of niche markets, which are economically viable in the digital ecosystem because of the dramatically decreasing storage, distribution, and search costs.^{Footnote 28} Thus, supply and demand meet not only for “mainstream” products available in the “head” of the snake, but also for many other products, now available in the ever-lengthening “tail.” So that, for example, indigenous music performers can become globally active, known, and potentially commercially successful.^{Footnote 29}

Even greater has been the promise of user-created content (UCC) as a powerful tool of democratization of content production and distribution. UCC, generated through the new type of “commons-based peer production”^{Footnote 30} can be said to embody the key media policy components of diversity, localism, and noncommercialism,^{Footnote 31} and in this sense could readily fulfill the key public interest objectives without additional intervention. Further, it is argued that the Internet-facilitated communication without intermediaries or other substantial access barriers has already created the always-aspired-to vibrant “marketplace of ideas.”^{Footnote 32}

Yet, despite the appeal of these transformative theories, evidence of current practices is much more nuanced. As for the long tail, it seems unclear, at least so far, whether an environment of unprecedented choice and sophisticated tools for identifying and accessing relevant content genuinely helps or harms the prospects for content that has not traditionally resided in the “head.”^{Footnote 33} One of the inherent characteristics of the new “attention economy” is the granular level of competition for audience, so that as online platforms offer the possibility of tracking the popularity of individual pieces of information and entertainment, editorial decisions may be distorted in favor of topics and genres that have mass appeal.^{Footnote 34} Also, as global legacy media and Internet corporations merge, both horizontally and vertically, in the pursuit of better utilization of all available channels and platforms, diversity may in fact be lost. The question of real consumption is also vexed, as it appears that it remains limited to a handful of mainstream online sources that are, as a rule, professionally produced by white, educated men.^{Footnote 35} While the positivity for user creativity is still strong,^{Footnote 36} in the narrower sense of grassroots content production and its impact on democratic discourse, skeptical voices stress the dangers of balkanization and fragmentation of the public discourse.^{Footnote 37}

Despite this more nuanced approach and the acknowledgment that the Internet does not simply translate into a vibrant environment of cultural diversity, nor does it render cultural policies, as a matter of state intervention, obsolete, the argument that none or very few of these developments have been translated into the cultural policy debate and into thinking about appropriate legal design is still valid.

Another implication of digital media that is rarely considered is that the Internet has undoubtedly broadened the scope of cultural policy discussions, so decisions taken at all layers of the communication model, that is, with regard to networks, applications, and content,^{Footnote 38} matter also for the attainment of cultural objectives, more or less immediately. In this sense, questions of net and search neutrality (i.e., respectively, the discrimination between different types of transmitted content or between search results) or interoperability (i.e., the ability of different hardware and software to connect and work together), which were previously considered only peripheral to culture become relevant. Such questions affect not only the regulatory environment where cultural objectives are to be pursued but also its regulability, that is, whether and how it can be regulated.^{Footnote 39}

The predicament for appropriate regulatory design in this context is that it needs to be holistic and consider multiple regulatory domains, such as telecommunications, information technology, standards, trade, intellectual property, and Internet governance. Each of which is marked by its own peculiar dynamics, power plays, and path dependencies. One should also consider the macro picture of governance, where the state is no longer the only actor but there is a “multiplication of agencies and forms of power that are active in the management of social systems.”^{Footnote 40} Cybergovernance has also brought its own specific set of hybrid governance models,^{Footnote 41} while at the same time allowing effective unilateral state action in cyberspace,^{Footnote 42} as well as regulation through code and technology in general.^{Footnote 43} Such a profoundly fragmented environment renders the sustainable provision of global public goods particularly difficult,^{Footnote 44} and takes the quest for regulatory coherence to a higher level of complexity.^{Footnote 45}

3. From “Culture Law 1.0” toward “Culture Law 2.0”

Admittedly, political decisions in the field of culture are not easy and neither is regulatory design. Despite the difficulties that this article has exposed, it is still worthwhile and important to ask whether the digital mismatch can be overcome. If yes, then what are the viable paths for reforming global cultural law and policies?

4. Concluding Remarks

The foregoing analysis has perhaps raised more questions than it has answered. The central argument this article sought to make is that the existing cultural policy instruments have not sufficiently considered the impact of digital technologies or have not done so at all. They are in effect still grounded in analog and offline thinking and do not reflect the complex contemporary processes of cultural creation, distribution, consumption, and preservation evolving in the digital environment.

While the promise of “cloud culture,” where there is more culture and it is more available than ever before to people, because of indefinite digital stores of data in the cloud, ubiquitous broadband, new search technologies, and access through multiple devices,^{Footnote 74} is a grand one, it comes with certain challenges attached. There is a need for a more granular understanding of the complex processes unfolding, which can give a good basis for a collective effort in the public interest to ensure the preservation, truth and access to our cultural heritage in a sustainable manner. This may mean both less and more regulation, as for example, digital media reduce the thresholds for creativity and participation, while conversely, the digital may exacerbate the mismatch between noneconomic and economic interests in cultural matters, especially as the current legal framework gives a priority to the protection of the latter.