Friday, April 11, 2008

Public and Private Governance

Following on from a number of recent posts which have considered the dominance of major record labels and the impact of their actions on the production and reception of political music, today I would like to briefly introduce the concept of private governance.

Below you will find links to a power point presentation I delivered last year titled ‘The Dialectical Interplay of Public and Private Governance: consequences for audible culture’. Arguing that we have reached a state of globalised private governance over audible culture, I conclude that the present degree of disablement of public governance structures, which took place through a series of historical developments and the emergence of modern corporations law, dramatically hinders (if not completely prevents) the resolution of the present conflict with respect to digital music.

This is not so much a new concept as an application of an existing perspective to the digital music environment. Lawrence Lessig began to consider the impact of private governance in cyberspace in Code (2.0). Chapter 16 in particular, concerns ‘the problems we face’. Here he refers to the limitations that are presently in place preventing the courts, legislature and ourselves, from being able to respond to the challenges of cyberspace.

He contends that the courts are paralysed from making the decisions they need to make as they are unable to adequately separate themselves from the political environment and because there is no ability for them to apply constitutional values to a space that is primarily privately owned and operated.

He also refers to the problems of governance itself (not just governance with respect to cyberspace), including the corruption of the political process through campaign donations and the establishment of private governance mechanisms such as ICANN, located outside the democratic process.

Finally he considers the problems with our understanding of, and interaction with, code, suggesting that in recognising the private status of this form of regulation, we should be asking things like: Who makes and writes the law? What is the scope for society to have an input into its development? Do we have a right to know about the regulation? And, is there a way for us to intervene or review it?

He states (at 324):

Whether code should be tested with these constraints of public value is a question, not a conclusion. It needs to be decided by argument, not definition... Courts are disabled, legislatures pathetic and code untouchable.

In real space, the concept of private governance has also been considered in the context of the destruction of the natural environment.

I see the impact of private governance on digital music as being a self perpetuating cycle – using the corporations law and public choice theory, media entities lobby and receive stronger legal protections enabling them to control the production and reception of culture, which in turn limits the awareness and ability of the public to challenge their control. Indeed, when culture is controlled in this way the implications are much wider than just digital music - impeding the realisation of constitutional values in cyberspace, the natural environment and many other areas of life. Political music illustrates, educates, motivates, and in conjunction with social movements, precipitates into social progress - provided it can be produced and accessed on a socially cohesive scale.

The solutions are outlined by Lessig in Chapter 17 of Code 2.0 and are undoubtedly the subject of much of his current research. As one of the major drivers of wider social progress, I would suggest that freedom of culture is a key component to this movement. Whilst it is tempting to suggest that the freedom of culture has to come before the reclamation of the legislature and democracy, more accurately, this is a fight that needs to be fought on multiple fronts at the same time. One cannot succeed without the other and both will happen in increments.

There are two versions of this file:
The first is an animated slide show with a synchronised audio track for those wishing to play the presentation – the text of the talk is also available in the notes view (large file):

The alternative version has just the text of the talk which can be read in the notes view (smaller file):

A separate document is provided as a bibliography:

Further Reading:

Lessig, Lawrence, Code 2.0 (2006)

Korten, David C, When Corporations Rule the World (2nd ed. 2001)

Wikipedia, The Prince (8 April 2008)
<> at 11 April 2008

Project Gutenberg, The Prince by Niccolo Machiavelli (1532)
<> at 11 April 2008

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