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PUBLIC POLICY AND LEGAL REGULATION OF THE INFORMATION MARKET IN THE DIGITAL NETWORK ENVIRONMENT

STEPHEN JOHN SAXBY

BA(Hons) Law, Cert. Ed., MBCS, FRSA, Solicitor
Senior Lecturer in Law, Southampton University

Ph.D THESIS

Contents

ABSTRACT

PUBLIC POLICY AND LEGAL REGULATION OF THE INFORMATION MARKET IN THE DIGITAL NETWORK ENVIRONMENT

by Stephen John Saxby

This Thesis examines the current public policy and regulatory options likely to influence the future development of the information market. The context is the successful delivery, by digital technology, of the Internet - the precursor to a future broadband network, more popularly known as the `information superhighway'. This advance, which feeds on convergence of the information and communication technologies, will enable text, sound and image to be manipulated, exploited and communicated in digital format across a number of delivery platforms. It has introduced a new phase of intensive policy analysis among administrations intended to lead to the development of national or regional information infrastructure plans, designed ultimately to produce a global framework. A central focus of policy examined by the Thesis is what form the regulatory environment should take to encourage synergy between the public and private sectors in respect of their contributions to the plan. Throughout the work the approaches of the United Kingdom, the European Union and the United States are compared.

The core of the Thesis is four papers, located in Chapters 1-4, which have either been published or accepted for publication in 1995/96. The first three will appear in the International Journal of Law and Information Technology (Oxford University Press) and the fourth in the 1995 International Yearbook of Law, Computers & Technology (Carfax). Chapter 1, `A Jurisprudence for Information Technology Law' considers the legal response to `digitization' and what the future holds. Chapter 2, `Public Sector Policy and the Information Superhighway' develops one of the themes from Chapter 1 and considers the public policy dilemmas posed by the information superhighway. Chapter 3, `Public Information Access Policy in the Digital Network Environment assesses the arguments for reform of EU access policy, its implications for the UK and the contribution it will make to the information market. Chapter 4, `A UK National Information Policy for the Electronic Age' reviews the progress of the UK in developing an integrated information policy for the information society. Chapter 5 contains a Conclusion.

The author believes the Thesis to be the first sustained public policy analysis of the subject since the digital network first began to enter the public domain in 1993.

STATEMENT OF AIMS

In accordance with Regulation 5(c) for Members of Staff in Candidature for the Degree of Doctor of Philosophy I am required to submit a statement of the aims and nature of the research indicating the contributions to it of the works submitted. In this respect I would like to refer to the separate statement on links and originality, contained in the Introduction, post, where aspects of the aims and nature of the research have already been outlined.

I submit that the aims of the research have been as follows:

(a) To assess the current state of legal policy development in response to the advance of digital technology and the factors that have motivated this in the thirty years since the digital computer was first launched into the information market.

(b) To trace the advance in technology that has led, in the 1990's, to the creation of the first generation information `superhighway'; to identify the response of national and regional administrations, particularly the United States, in formulating national information infrastructure (NII) plans; to define the policy objectives of such NII proposals in terms of the information market and the delivery of more effective and efficient government; and to examine domestic policy towards a UK NII with particular reference to the treatment of UK public sector information and the administration of it by Her Majesty's Stationery Office (HMSO).

(c) To trace the development of European Union public information access policy and the impetus given to it since the arrival of the digital network; to examine the formation of US information access policy encapsulated by the Paperwork Reduction Act of 1995 and the likely EU policy options; to compare and assess UK policies on efficiency and access; and to identify what aspects of UK policy are likely to conflict with the EU's forthcoming proposals to improve the synergy between public and private sectors in the information market.

(d) To trace the influences that have guided the development of a UK information policy; to identify the parameters of that policy in terms of public sector tradeable information, infrastructure development and legal regulation of the information market; to identify any inconsistencies within the individual elements of such policy and the steps that might be taken to integrate those elements more effectively into the overall policy framework.

NATURE OF THE RESEARCH

This statement describes the nature of the research and the contributions to it of the works submitted.

The research builds on more than 15 years experience in the broader field of information technology law and more particularly upon my earlier analysis 1 of the origins of the present information technology revolution which has led, in the 1990's, to the arrival of the global digital network. The theme of the research has been the examination of the response of national and regional administrations, viz., the United States, the European Union and the United Kingdom to the opportunities created by the digital network for enhancement of the information market through improvements in the synergy between the public and private sectors. It shows how the United States has taken a lead in the development of what has become known as `National Information Infrastructure Plans', through its Information Infrastructure Task Force initiative (IITF), and what steps the EU has taken to develop a framework designed to lead to a European Information Infrastructure of its own. Throughout the research I have sought to compare UK policy in the context of the size and nature of the UK information market and the UK's membership of the EU. These two factors are important influences upon the development of UK policy, as is the legacy of privatisation in shaping present Government attitudes to public sector performance.

The methodology I have used has involved the study of a wide range of documentation, almost exclusively primary source material. This is necessary because aspects of the subject matter are no more than two years old, given the fact that the `information superhighway' or `Internet' has only been in the public domain for that period of time. Many governments failed to predict either its arrival or impact and consequently have been caught `off-guard' in the process. The United States has led the way and therefore much of my initial research has included analysis of IITF documentation downloaded from the Internet. I believe my achievement in mastering the use of the Internet in this way has pioneered a new research method likely to be of increasing value to the academic community. The later research involved scrutiny of European Commission documentation and of UK Parliamentary Papers. It also involved discussions with legal publishers and HMSO regarding their dispute about the enforcement of Crown copyright.

I believe that one of the achievements of the research has been the success I have had in analysing a wide range of documentation and discerning from it the nature of policies being pursued and the success or otherwise of them in terms of the development of the information market. It has been a comparative study that has required a clear understanding of the context of US and EU activity. In the course of the research I have not discovered any other UK published work that seeks to equate this comparative analysis of information policy with the new conditions prevailing since the entry of the digital network into the public domain.

The contribution of the works submitted to the nature of the research is best described by reference to the Statement of Aims ante. These aims represent the individual contributions of each of the Chapters 1-4 respectively to the overall objective. The four topics, which have all been published or accepted for publication by refereed works, are presented substantially in the form in which they have been submitted for publication in fulfilment of the University requirements for published work `broadly comparable to a Ph.D thesis' (Reg. 5(a) p.159 1994/95 Calendar). A separate Conclusion (Chapter 5) is submitted exclusively with the Thesis to draw the material together. A more detailed commentary on the contribution of the four main chapters has been made in the Statement of Introduction that follows.

INTRODUCTION

This Introduction is submitted in accordance with Regulation 5(c) of the Regulations for Members of Staff in Candidature for the Degrees of Master of Philosophy and Doctor of Philosophy (University of Southampton Calendar 1994/95 p.159-160). This states that where published papers from different sources are included in the Thesis the staff candidate must provide a separate introduction which links the material and demonstrates the nature and extent of his/her original contribution.

Statement of Links and Originality of the Material

The research and writing of this Thesis has been a consistent activity of mine for the past two years. It builds upon more than 15 years prior experience in the general subject area and draws particularly upon the background work that led to the publication in December 1990 of Saxby `The Age of Information' (Macmillan/New York University Press). It also draws upon my 10 year membership of the British Computer Society Intellectual Property Committee, whose function includes the analysis, commentary and submission of advice to government on proposed legislation in the field of Information Technology Law.

When I decided to embark upon the Thesis in 1992/93 I intended that the first of the four papers, that comprise the body of the work, would form the foundation for the subsequent material which would develop elements from the first paper in greater depth. In the early stages of the research I had anticipated that this would engage me substantially in private law analysis. However, my subsequent work and discussions with the European Commission, that ultimately led to my appointment to the Legal Advisory Board of the Commission and to its Task Force on Access to Public Information, convinced me of the value of pursuing the research in the public law area. I also discovered that there appeared to be no sustained analysis of the subject in the UK that drew upon the wider policy implications of UK membership of the European Union or the likely influence of the United States, which has taken a lead in setting the policy agenda.

Evidence of the originality of the work lies in the currency of much of the primary source material which I used. A fundamental principle of the Thesis, that has driven the analysis throughout, is the belief that the emergence into the public domain of the digital network, over the past two years, has radically altered both regional and national perceptions of what Government's role and contribution should be to the development of this new technology. Whereas the process of computerisation produced a more limited reaction from administrations, which sought to support the integration of information technology into public and private sector use, a quite different and more fundamental response will be demanded to harness the potential of the digital network. This is because the latter is poised to open up a new communications medium that will allow mass access to information, to electronic commerce and to government services. This will, at the same time, offer immense opportunities to the private sector to provide the infrastructure and information services required. If successful, national and regional economies will be strengthened.

An indication of the validity of these assumptions can be seen from the response of the United States. Ever since the Clinton Administration came into power, in 1992, the Information Infrastructure Task Force has been working to advise the President on the policies necessary for a US National Information Infrastructure to be formed. The extent of the programme and the depth of its investigations has left no aspect untouched. This has galvanised the EU into its own substantive efforts to formulate an EU Information Infrastructure programme to lead into the next millennium. The UK has taken a few decisive steps but has left a great deal unresolved.

It is into this environment that I have come to conduct this research. To do so it was necessary, first of all, to acquaint myself with the Internet. I was aware that much of the material I needed was being published there and would otherwise be difficult to identify and access. I therefore discovered how to obtain a copy the `Netscape browser' software, electronically. Subsequently I loaded it, learnt how it worked and ultimately how to put it to good use in bringing the Internet into use for my research. I believe I have contributed new research methods to the Faculty of Law, which culminated in the internal publication, within the Faculty, of a Guide entitled `Legal Resources on the Internet' (July 1995).

When I finally settled the subject matter of the research I had the option, as a potential `staff candidate', of publishing the work as a book or as a series of discrete papers. I chose the latter option as my primary goal largely because I wanted to get the work published as soon as possible. Events within the subject area are moving at a rapid pace and I did not want my later work to be eclipsed by developments. The obvious prime location for the material, once I had decided on the publishing course just described, was the International Journal of Law and Information Technology (Oxford University Press). This is a prestigious refereed journal, intended for an international readership of students and experts in the field. The first three papers were submitted in succession and duly accepted, having gone through the full refereeing process. Subsequently, I was invited to become a member of the editorial panel. My fourth paper, which is Chapter Four of the Thesis, might also have found its way to the Journal, but I was already committed to a contribution to the Carfax 1995 Yearbook of Law, Computers and Technology as part of its theme on the legal regulation of the digital network. My final paper fitted that objective well. I choose to explain these matters in my Statement as I believe that the timing of the submissions and the agreement to publish all the material within a 12 month time-span is indicative that they have all been produced in a single continuing and sustained research effort.

The structure of the work is as follows. The three subsequent papers to Chapter One, that comprise Chapters Two-Four of the work, are all designed to develop themes identified in the first paper. Chapter One of the Thesis is entitled `A Jurisprudence for Information Technology Law'. It examines what factors have motivated legal policy development since the commencement of the digital revolution more than 30 years ago at a time when lawyers were just beginning to speculate about the legal problems of the newly emerging technology of the digital computer. Its originality lies in the very task which I set myself for the paper. It identifies the technological conditions that are shaping legal policy and sets out the agenda for current analysis and further work.

Chapter Two, entitled `Public Sector Policy and the Information Superhighway', picks up the theme first discussed in Section 3 of Chapter One: `Regulating the Digital Network'. The justification for the analysis is the lead held by the United States through its Information Infrastructure Task Force (IITF). It is essential for the Thesis to explore the work of the IITF and to consider its implications. The originality of Chapter Two can be found in the analysis of the documentation and in the identification of the preliminary elements of US infrastructure policy. A further original contribution is made in part two of the paper which assesses current UK policy on the NII. For the first time the Government's `Next Steps' policy of privatisation of the public sector has been examined in the context of the emerging NII debate. I show how the policy applying to Her Majesty's Stationery Office (HMSO) directly feeds into its administration of Crown copyright, which contributes revenues on behalf of the agency, in fulfilment of HM Treasury imposed financial targets. In the course of the research I discussed the issue confidentially with legal publishers and with senior officers of HMSO itself. Accordingly, I believe I have contributed new insights into the impact of the present arrangements. I have also contributed original work to the analysis of EC Competition Law in relation to HMSO's position and also when I discuss how the Treaty of Rome might be interpreted to enforce a change in HMSO's current administration of Crown copyright.

Chapter Three: `Public Information Access Policy in the Digital Network Environment' develops the theme in Section 3.2 of Chapter One: `Information Policy on Access, Use and Content'. In this regard I was particularly fortunate, having submitted drafts of Chapters One and Two to the European Commission, to be appointed to the Legal Advisory Board Task Force on Access to Official Information. This exposed me to the cutting edge of discussion within the Commission, which fed into the Chapter in respect of the analysis of the policy options for EC regulation. The catalyst for the debate is the digital network and the options facing the EU in harnessing its use to fulfil Community objectives identified at Maastricht and embodied in the Treaty of European Union. Discussion has also been extended to explore how the digital network might improve the quality of public service provision to the citizen in what Vice President Gore has described as the arrival of `Electronic Government'. UK policy on all these matters is investigated and compared with the legislative approach of the US, which imposes a statutory framework, instead of the `grace and favour' alternative preferred by the UK. The latter is based on Codes of Practice and a Citizen's Charter. The relatively low key and parochial response of the UK Government towards use of the digital network for interactive communication with the public is outlined and put into context with likely EC policy initiatives. The originality in Chapter Three is found in the attempt to relate EC policy to UK approaches and the contrast made with current US arrangements.

Chapter Four: `A UK National Information Policy for the Electronic Age', develops the discussion from all three chapters into a specific look at the present state of UK national information policy. It identifies the forces at work that determine UK thinking, particularly the emphasis on competitiveness articulated in a recent White Paper. It looks at how present UK policy is working in respect of public `tradeable information' and the differences emerging with the EU, given its recent study of the 1989 EC Guidelines on the subject, due to be updated soon. It also looks at how effective UK telecoms infrastructure policy has been in encouraging inward investment in the digital network. Thirdly, it reviews the regulatory position on information policy in the context of the July 1995 EC Green Paper on Copyright and Related Rights in the Information Society and the Common Position on the proposal for a Database Directive published in the same month. Encryption policy is also analysed and the experience of the US with the `Clipper Chip' taken into account. The paper concludes with the suggestion that the UK should establish an Office of Information and Regulatory Affairs, similar to that operating in the United States. The originality of the work in Chapter Four lies in the identification of the parameters of UK information policy, based on access and exploitation of public information, the successful provision of infrastructure and an integrated regulatory framework of related public and private sector activity. Throughout the Chapter, emphasis is given to the new conditions created by the availability of interactive communication via the digital network.

I submit that the body of the work just described fulfils the University requirement of published work that it be `broadly comparable to a Ph.D thesis'. I believe this statement has outlined the original contribution it has made, being the product of `sustained work normally in a single field'. I submit the Thesis to be considered accordingly.


Dedication

For my wife Susan, my three children - Rosalyn, Matthew and Eleanor and my parents - Tom and Irene Saxby.

Footnote

1  See Saxby, The Age of Information, Macmillan/New York University Press (1990)

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