On Democracy, Information and Intellectual Property Rights.

On Democracy, Information and Intellectual Property Rights

Supervisor: Dr. Robin Celikates

Table of Contents

Introduction... 1

1. Dewey: The Communication of Social Inquiry...4

2. Information and Deliberative Democratic Theory... 8

Knowledge as a Condition of (Ideal) Deliberative Procedures...9

Bohman: Deliberative Democracy and Inequality...12

Epistemology and Deliberative Democracy...15

3. Information in the Public Sphere and the Media...19

Peters: The Public Sphere and Public Culture...19

Media and the Distribution of Information... 22

The Internet and Public Deliberation...24

4. Is There a Tension between Deliberative Democracy and Intellectual Property Rights?...31

Intellectual Property Rights...32

Intellectual Property Rights and Democratic Deliberation... 35

Intellectual Property Rights and Public Culture... 38

Intellectual Property Rights and the Internet... 39

The Democratic Illegitimacy of Expanding Intellectual Property Rights ...42

Conclusion... 44

Universal access to human knowledge is in our grasp for the first time in the history of the world. This is not a bad thing.

— Cory Doctorow (2008) Little Brother, Preface.

There does not now exist the kind of social organization that even permits the average human being to share the potentially available social intelligence. Still less is there a social order that has for one of its chief purposes the establishment of conditions that will move the mass of individuals to appropriate and use what is at hand. Back of the appropriation by the few of the material resources of society lies the appropriation by the few in behalf of their own ends of the cultural, the spiritual, resources that are the product not of the individuals who have taken possession but of the

cooperative work of humanity. It is useless to talk about the failure of democracy until the source of its failure has been grasped and steps are taken to bring about that type of social organization that will encourage the socialized extension of intelligence.

Introduction

On January 18, 2012, more than 115,000 websites participated in an Internet blackout to protest against the Stop Online Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA) (New York Times, 2012). SOPA and PIPA were proposed legislation in the US Congress that would increase the protection of intellectual property rights online. The critics of these proposals argued that SOPA and PIPA would harm free online speech and disrupt the Internet's current structure. One of the first organizations to begin the initial protest against SOPA and PIPA was Demand Progress, an organization founded by Aaron Swartz (1986-2013). Swartz committed suicide on January 11, 2013, while he was being federally prosecuted 'for downloading too many academic articles housed by the online cataloguing service called JSTOR' (Segal, 2013: vii).1 _{The motivating factor behind Swartz's actions was a conviction}

that this information should be freely accessible, instead of locked behind a paywall and protected by copyright. These two recent events call attention to the political debate surrounding intellectual property rights. Intellectual property rights have also been studied and discussed academically. The topic has attracted cultural theorists, economists, political scientists, and, of course, legal scholars. In the field of philosophy, intellectual properties rights have also been studied. Some philosophers discuss the moral justification of intellectual (Cf. Hughes, 1988; Drahos, 1996; Shiffrin, 2007). In addition, intellectual property rights have been discussed in the philosophical contexts of human rights and (global) justice (Cf. Pogge, 2005; Drahos, 1996: Ch. 8). In this thesis, intellectual property rights will be analyzed in relation to democracy.

The introductory quotes by Cory Doctorow and John Dewey illustrate two conflicting tendencies that can be observed today: on the one hand, technological progress has made it possible for information to be accessed by anyone with an internet connection. On the other hand, the expansion of intellectual property rights has made information and cultural knowledge private possessions, thereby limiting their availability to the public. Dewey's claim that democracy has failed because cultural and spiritual resources were turned into possessions, raises an interesting question: how do intellectual property rights affect democracy? The ideal of democracy assumes that the people are capable and have the resources to govern themselves. Moreover, a democracy presumably operates better when its citizens are well-informed. When intellectual property rights limit the people's access to information, does this harm the realization of the democratic ideal? These considerations motivate the research question of this thesis: is there a tension between the 1 The charges were not based on copyright infringement but on Swartz circumvention of the technical barriers that

informational requirements of democracy and the protection of intellectual property rights?

The thesis will answer this question in two stages. In the first stage, a philosophical analysis of the informational requirements of democracy will be given. Followed by an analysis of the way intellectual property rights affect these requirements, in the second stage. The reason behind this ordering is that a conception of the role of information in a democracy is necessary, before the effects of intellectual property rights on a democracy can be assessed. Intellectual property rights enable the control of the use of ideas and information and it is thus to be expected that the main impact of these rights on a democracy will be in the area of information. Therefore, it is only possible to examine the tension between the democratic ideal and intellectual property rights, after the function of information in a democracy has been studied. The theory of democracy will serve one main purpose in this thesis: it provides a model which specifies the informational requirements of democracy and a way to analyze how the enforcement of intellectual property rights affect the fulfillment of these requirements. In addition, the theory can also offer an ideal standard along which the democratic legitimacy of the implementation of intellectual property right law can be assessed.

To analyze the informational requirements in a democracy, this thesis will use the model of deliberative democracy. The model developed here will be based on the theories of Habermas, Bohman and, to a lesser extent, Cohen, Dahl and Fishkin. The choice for the deliberative model of democracy is motivated by several reasons. The model rightly emphasizes the importance of justifying policy decisions through a process of public reasoning and the necessity of giving voice to both citizens from minority and majority groups in the democratic process. The model also captures the dynamic nature of public opinion in a democracy and expresses the ideal of progress in political, moral and general knowledge through public deliberation. Furthermore, deliberative democracy describes particular aspects of a democracy which have an informational function in a democratic society, e.g., the public sphere, the media and communicative reason. While other models of democracy, such as republicanism, may have relevant bearings on the issue of intellectual property rights, the model of deliberative democracy appears to be the most appropriate theory in this context because it is both relevant to the subject at hand and takes account of crucial

characteristics of modern democracies.

Unfortunately, in the theoretical discussion of deliberative democracy little can be found on the informational requirements of democracy. It is evident that the deliberative model presupposes the existence of information to some extent. For example, according to Habermas one of the functions of deliberation in a democracy is 'to mobilize and pool relevant issues and required information' (Habermas, 2006: 416). This 'required information' will have to exist in some form

among the citizens, before it can be collected through deliberation. Other theorists have also

mentioned the role of information in democratic deliberation but few of them systematically explore what the informational requirements prior to the deliberative process are and how they might be satisfied. Put differently, most of the theories regard access to information as an important condition during democratic deliberation but they do not describe the role of information before deliberation, as a precondition of deliberation. As a consequence, it remains unclear in the discussion on

deliberative democracy what the precise role of information in a democracy is and if there are any necessary requirements on the communication of information in a deliberative democracy.

John Dewey, in contrast to contemporary theories of deliberative democracy, does consider the fundamental role of information in a democracy. He argues in his theory that certain

informational preconditions need to be met in order for the democratic process to be successful. This view has important implications for the way the communication of information should be structured in a democracy. Dewey's theory is, therefore, an excellent starting point to fill the theoretical gap in the deliberative model and to begin an analysis of the role of information in a democracy. The insights of Dewey's theory in Chapter 1 can, subsequently, be linked to the current discussions of deliberative democracy in Chapter 2. The second chapter will also discuss

information as a condition in deliberative democratic theories; the consequences of inequality of information; and how informational requirements relate to the epistemological justifications of deliberation. Chapter 3 analyzes the relation between the informational requirements of democracy and the public sphere, the media and, in particular, the Internet. This chapter relies on the theory of the public sphere developed by Peters. It is possible, then, to address the issues of intellectual property rights in Chapter 4 within a theoretical context that appreciates the importance of information in a deliberative democracy. In this chapter, it will be discussed how intellectual property rights affect the distribution and access of information. The thesis will conclude that there is indeed a tension between intellectual property rights and the informational requirements of deliberative democracy.

1. Dewey: The Communication of Social Inquiry

In The Public and Its Problems (1927) Dewey attempts to formulate a political theory based on empirical inquiry, as opposed to a priori concepts. This pragmatic approach gives his theory the flexibility to be applied to changing modern circumstances, such as the rise of the Internet and changes in property rights. Dewey's theory is relevant to the subject of intellectual property rights because it specifies the role of information and communication in a democratic society. Dewey is also regarded as one of the intellectual predecessors to the contemporary theory of deliberative democracy. In his theory, for instance, the concepts of a public sphere and the importance of

inclusive, public deliberation are already present, although on certain aspects Dewey's theory differs significantly from the current discussion on deliberative democracy, as will become apparent in the following two chapters. One essential part of Dewey's theory, is his analysis of how information, or knowledge, is a necessary condition for the constitution of a 'public' and the implications hi analysis has for the necessity of communicating information in a democratic society. Before this part of Dewey's theory will be discussed, it is useful to start with an introduction of the general ideas of his political theory.

In Dewey's view, politics begins when a third party of individuals is affected by the (negative) externalities of the interactions between other individuals or associations. He refers to this third party as the public: 'The public consists of all those who are affected by the indirect consequences of transactions to such an extent that it is deemed necessary to have those

consequences systematically cared for' (Dewey, 1927: 15-6). The public is a necessary condition to the formation of a bond between a community and the state:

The lasting, extensive and serious consequences of associated activity bring into existence a public. […] By means of officials and their special powers it becomes a state. A public

articulated and operating through representative officers is the state; there is no state without a government, but also there is none without the public (Dewey, 1927: 67).

An important part of Dewey's theory concerns an analysis of the conditions under which a public can come into existence. The mere presence of externalities are not by themselves a sufficient condition for the formation of a public because the affected individuals need to be aware of the externalities (Hildebrand, 2008: 117). Especially in complex modern societies, where the indirect consequences can be far-ranging and difficult to track, it is difficult for individuals to become aware of these consequences and to form a public (Dewey, 1927: 165). To understand how a public under modern circumstances can be formed requires a brief exploration of Dewey's idea of social inquiry.

Social inquiry is the idea of scientific inquiry transposed to the political sphere or, rather, inquiries relevant to the social dimension of a community. The strength of the scientific method is that it enables a community of scientists to communicate the results of trial-and-error experiments and, as a result, to collectively advance knowledge (Savage, 2002: 94-5). Dewey argues that a similar form of inquiry should guide political processes, instead of a reliance on pre-established theories or ideologies. Whether social inquiry can manifest itself in a community depends on the availability of knowledge in a community and the dispositions of its citizens towards this

knowledge. The 'dispositions can be summarized as critical reflection, creative individuality, and communication (or sociability)' (Savage, 2002: 95). Through education citizens can be taught to be critically reflective and creative towards the information they receive and this is the subject of Dewey's philosophy of education. More relevant to the discussion of this chapter, however, are the requirements of how information in social inquiry should be obtained and made available to the citizens, since 'knowledge is communication as well as understanding' (Dewey, 1927: 176).

The idea of social inquiry can be interpreted to occur on two related, although conceptually distinct stages. The first stage occurs when the public is still inchoate and needs to become knowledgeable of the problems it faces. The second stage concerns the process of democratic deliberation where the constituted public tries to communally address the problems identified in the first stage. In Dewey's theory this distinction is not made explicit and in discussions of his theory, generally one of the two stages is emphasized—mostly the second. The first stage of social inquiry is carried out by experts:

Inquiry, indeed, is a work which devolves upon experts. But their expertness is not shown in framing and executing policies, but in discovering and making known the facts upon which the former depend […] It is not necessary that the many should have the knowledge and skill to carry on the needed investigations; what is required is that they have the ability to judge of the bearing of the knowledge supplied by others upon common concerns

(Dewey, 1927: 208-9).

Thus, experts provide the information for democratic deliberation but their inquiries by themselves are politically indeterminate. For example, a group of experts may present an inquiry on the risks of certain financial synthetic products that raises awareness of these risks and results in the

constitution of a public. Through deliberation the public can then interpret the broader implications of these results and decide what, if anything, should be done about these risks. Instead of an

expertocracy, the two stages of social inquiry amount to a democratic division of labor. Ideally, social inquiry in the first stage is executed by natural and social scientists and governments ensure that the results of these inquiries are communicated to the citizens. One initial

problem and deviation from this ideal situation, is that not all research qualifies as social inquiry. Science is often unconcerned with the study of how citizens can control social and human affairs. Moreover, a lot of research in both the natural and social sciences is of such a technical nature that a layperson cannot judge its methods or merits. Thus, while science through technology has affected the lives of many, it has not provided these people with the necessary tools to understand how and why they are affected (Dewey, 1927: 162-5). In addition to social relevance, social inquiry also requires that there is 'continuous inquiry […] in the sense of being connected as well as persistent'; 'there is systematic, thorough, and well-equipped search and record'; and that inquiry is 'as nearly contemporaneous as possible' (Dewey, 1927: 178, 179).2 _{This thesis will continue under the}

assumption that the production of this type of information is indeed possible and may to a certain extent already be in existence. The current problem is how the public can be given access to this information. Indeed, whether information is too technical or socially irrelevant can only be judged after it has been communicated.

A further deviation from the ideal is that governments cannot always be trusted to ensure the communication of social inquiries because governments can be influenced by private interests that do not wish for certain information to become public. According to Dewey, therefore, the main responsibility of providing citizens access to knowledge falls on the shoulders of intellectuals and artists (Savage, 2002: 108-10).3 _{The writings and critiques of engaged intellectuals, both in and}

outside of academia, could be crucial components of social change in a democracy, although the average citizen may not have the interest to read these social investigations. In response to this observation, Dewey counters that this may be true concerning intellectual writings but that it overlooks the importance of art in the dissemination of social knowledge: 'Presentation is

fundamentally important, and presentation is a question of art […] The function of art has always been to break through the crust of conventionalized and routine consciousness' (Dewey, 1927: 183). Art, compared to most intellectual work, appeals and reaches a wider audience, effectively

combines new ideas with emotions and can offer an alternative vision of the present (Savage, 2002: 109). Classic examples of literary art diffusing new social ideas are Uncle Tom's Cabin (1852) by Harriet Beecher Stowe and The Jungle (1906) by Upton Sinclair, works that raised public awareness for the issues of slavery and the working conditions in the meatpacking industry.

The communication of knowledge is a crucial element in the constitution of a public: 2 Arguably, the internet today offers at least the necessary technological conditions for this kind of continuous,

systematic and contemporaneous inquiry but it is not obvious that the internet is a sufficient condition for social inquiry, nor that the future architecture of the internet will continue to facilitate such a form of inquiry.

3 It is possible that artists, as well as intellectuals, produce works that are not socially relevant and too far removed from social reality.

'Systematic and continuous inquiry into all the conditions which affect association and their

dissemination in print is a precondition of the creation of a true public' (Dewey, 1927: 218). A group of individuals can only address the problems it faces, once it possesses knowledge of these

problems. Therefore, '[c]ommunication of the results of social inquiry is the same thing as the formation of public opinion' (Dewey, 1927: 177). On the basis of social inquiry a public is formed and can judge what solutions are necessary to confront the problem it faces. The formation of a public in itself does not entail a harmony of needs and opinions among the individuals that constitute the public. In his theory, Dewey does not suppose that there is one right answer to a problem that can be discovered through social inquiry. Instead, a process of deliberation and majority decision-making is necessary for a public to form a judgement in practice. According to Dewey, the communication of information is an essential precondition for the improvement of this deliberative process:

The essential need, in other words, is the improvement of the methods and conditions

of debate, discussion and persuasion. That is the problem of the public. We have asserted that this improvement depends essentially upon freeing and perfecting the processes of inquiry and dissemination of their conclusions (Dewey, 1927: 208, emphasis his).

Dewey's conception of politics as social inquiry has important implications on how

information should be communicated in a democratic society: 'There can be no public without full publicity in respect to all consequences which concern it. Whatever obstructs and restricts publicity, limits and distorts public opinion and checks and distorts thinking on social affairs' (Dewey, 1927: 167). In other words, a democracy requires that citizens are not restricted in their access to the social inquiries of intellectuals and artists. It also means that these social inquiries should have a sustained presence in a community, i.e., they do not disappear over time but remain accessible to citizens, so that they may use this knowledge to get a grasp on the external influences affecting their conduct. As will become clear in the following chapters of this thesis, Dewey's perspective on democracy and its relation to information has important consequences on what constitutes a desirable intellectual property rights regime for a democracy. Before this topic will be attended to, however, the discussion will turn to more contemporary theories of deliberative democracy and their informational requirements.

2. Information and Deliberative Democratic Theory

An important discussion in deliberative democratic theory concerns the question whether the outcome of democratic deliberation should be judged by an external or internal criterion. Some theorists argue that it is more important that the outcome of a deliberative democratic process will be epistemologically correct, the 'externalists'. Other theorists argue that it is sufficient that the procedures of reaching a conclusion were fair, the 'internalists' (Estlund, 1997). The role of information does not seem to figure prominently in this discussion, which is slightly surprising since epistemological correctness will depend in part on accurate knowledge. As already mentioned, one of the difficulties of assessing the informational requirements of contemporary theories of deliberative democracy is that few theorists consider information as a fundamental factor of deliberation. However, as the discussion of Dewey's theory made apparent, there are informational requirements underlying successful deliberation. These requirements have implications both for the conditions of a fair deliberative process—i.e., whether there is equality among the participants concerning the distribution of information—and whether the outcome of the deliberative process is epistemologically correct. This chapter will attempt to infer the informational requirements of democratic deliberation by applying the insights of Dewey's theory to the theory of deliberative democracy.

The structure of this section is as follows. In the first part, a brief overview of the necessary conditions for an "ideal procedure" of democratic deliberation will be given, as found in the theories of Cohen, Habermas, Dahl and Fishkin. The purpose of this overview is to gain a general grasp of the necessary theoretical conditions of a fair deliberative process and, in particular, to assess the function of information in these conditions. The second part discusses James Bohman's theory of deliberative democracy. Bohman's (self-proclaimed) theoretical position is in between Rawls and Habermas and as such his theory is representative of the contemporary perspective of deliberative democracy (Bohman, 1996: 4). Moreover, Bohman approaches deliberative democracy from a more empirical and practical standpoint and his view on deliberative democracy is therefore close to Dewey's theory. This affinity facilitates a synthesis between Dewey and contemporary deliberative theory. The focus of this discussion will be on the unequal distribution of deliberative resources. The final part of the section will return to the issue of epistemology in democratic deliberation and will show how the concept of informational requirements has a bearing on this debate.

Knowledge as a Condition of (Ideal) Deliberative Procedures

Joshua Cohen offers a rather minimal and formal characterization of the ideal of deliberative democracy. His conception of deliberative democracy captures the basic idea that through public reasoning a group can collectively solve problems and legitimize solutions. According to Cohen, in a deliberative democracy citizens 'share a commitment to the resolution of problems of collective choice through public reasoning, and regard their basic institutions as legitimate insofar as they establish the framework for free public deliberation' (Cohen, 1997: 72). Through public deliberation the terms and conditions of an association are also justified. Cohen's formal conception of

deliberative democracy consists out of five components: A deliberative democracy (i) 'is an ongoing and independent association'; (ii) its members are committed to the realization of deliberation and '[f]or them, free deliberation among equals is the basis of legitimacy; (iii) is pluralistic; (iv) the connection between the deliberative procedure and its outcome is manifest, or public (v) its

members recognize each other as capable deliberators (Cohen, 1997: 72-3). To state the conditions of this formal conception explicitly, Cohen describes the ideal deliberative procedure, which captures the principle that 'outcomes are democratically legitimate if and only if they could be the object of a free and reasoned agreement among equals' (Cohen, 1997: 73). Ideal deliberation is free in the sense that participants are only restrained by the results and preconditions of deliberation; and participants can assume that they can act upon the decisions made in the deliberative process. Deliberation is based on reason. In the ideal deliberative procedure there is both formal and substantive equality because 'the rules regulating the procedure do not single out individuals' and the distribution of power and resources does not affect deliberation (Cohen, 1997: 74). Finally, the ideal deliberative procedure aims at a consensus based on reason. If such a consensus is not possible, decisions are based on majority rule (Cohen, 1997: 74-5). This account of deliberative democracy has certain shortcomings, two of which are relevant to the discussion here. First, the conditions of the ideal deliberative procedure do not mention any requirements on the distribution of information. It will be argued below that information should be regarded as a resource that should be equally distributed in order to satisfy the condition of substantive equality. Second, as argued by Habermas, Cohen's account of a deliberative democracy places too much of a burden on the deliberative process but does not consider the larger sociological context in which this process needs to be embedded.

Habermas agrees with Cohen's characterization of the deliberative procedure and its

substantive conditions but emphasizes that democratic deliberation cannot steer society as a whole because 'democratic procedure must be embedded in contexts it cannot itself regulate' (Habermas, 1996: 305). Furthermore, this characterization omits the difference between formal

decision-oriented deliberation and 'the informal processes of opinion-formation in the public sphere'

(Habermas, 1996: 307). On the one hand, there is a formal public sphere that figures as a context of justification, e.g., a parliamentary body. This formal body, on the other hand, relies for its input on an unregulated, informal public sphere that provides a context of discovery (Habermas, 1996: 307). There is a similarity between the two types of public sphere and Dewey's two stages of social inquiry. In the first part, problems are discovered and a public is formed. In the second part, these problems are dealt with through a democratic procedure. In order to determine whether these similarities hold up to further scrutiny, it is important to determine what conditions Habermas places on a deliberative democratic procedure.

To develop his 'sociological translation of the concept of deliberative politics', Habermas takes Dahl's five criteria, that specify a democratic procedure in everyone's interest, as a point of

departure. The five criteria are (i) equal votes, (ii) effective participation, (iii) enlightened understanding, (iv) final control over the agenda and (v) inclusiveness (Dahl, 1985: 59-60). Especially the third criteria is of interest here. It is explained as follows, '[i]n order to express preferences accurately, each citizen must have adequate and equal opportunities, within the time permitted by the need for a decision, for discovering and validating his or her preferences on the matter decided' (Dahl, 1985: 59). Elsewhere Dahl adds, 'the opportunity to acquire an

understanding' of the matter under discussion (Dahl, 1989: 112). It is a sensible requirement that citizens are able to gain knowledge about the topic of deliberation, if the procedure is to be in everyone's interest. For if the deliberators are uniformed about what decisions are in their own interest and in the interest of the group, their judgements are unlikely to be well-reasoned and fair. Dahl considers specialized, technical knowledge used in policymaking as one of the obstacle in democratic progress. 'The chief danger consists in the technocratic variant of a paternalism grounded in the monopolization of knowledge' (Habermas, 1996: 317). The more complex the division of labor in a society becomes, the more it has to rely on specialized knowledge. When the specialized knowledge that is used to govern a society is only accessible to a few citizens, then the public as a whole lacks the resources for democratic control and is colonized, in Habermas's terminology. Thus, Dahl recognizes the need for knowledge to be accessible, although it is unclear if he considers the distribution of knowledge as a necessary condition of the deliberative procedure.

Habermas acknowledges the differences in access to knowledge in his discussion of the deviations of actual communication from an ideal communicative social relation. According to him, 'the unavoidable division of labor in the production and diffusion of knowledge results in an

unequal distribution of information and expertise' (Habermas, 1996: 325). Furthermore, '[t]he structures of the public sphere reflect unavoidable asymmetries in the availability of information,

that is, unequal chances to have access to the generation, validation, shaping and presentation of messages' (Habermas, 1996: 325).4 _{These examples are moments of inertia where the actual}

communicative resources of people fall short in realizing pure communicative social relations. From the perspective of Dewey's theory, a difference between an unequal distribution of expertise does not entail a problematic unequal diffusion of information because experts could share their knowledge. The relevant question is whether a specific distribution of knowledge inhibits deliberation. In Habermas's view, these unavoidable deviations from an ideal communicative situation are not problematic because this situation can be achieved procedurally through the medium of law (Habermas, 1996: 326). However, this procedural solution does not solve problems of asymmetry in knowledge or deficiencies in information that occur within the legal community. Also, if the informal public sphere is to have influence on the formal public sphere, then the distribution of knowledge in society as a whole will remain a relevant issue. As Habermas notes:

The communication circulating in the public sphere is especially vulnerable to the selective pressure of social inertia [e.g., asymmetries in knowledge]; the influence thus generated, however, can be converted into political power only if it passes through the sluices of

democratic procedure and penetrates the constitutionally organized political system in general (Habermas, 1996: 327).

When there is no access to knowledge in the public sphere, many potential opinions will not emerge from the informal public sphere in the first place, and, as a result, their penetration of the political system will not be an issue. For this reason, it is important to consider the informational

requirements of a deliberative democracy, as it is an essential condition of a deliberative procedure. However, apart from these remarks on asymmetries in knowledge and his discussion of Dahl's criteria, Habermas does not appear to explicitly formulate any informational requirements on deliberative procedures.

Finally, Fishkin explicitly mentions information as one of the conditions that determine the quality of deliberation. Information is defined as 'the extent to which participants are given access to reasonably accurate information that they believe to be relevant to the issue' (Fishkin, 2009: 33). This condition should be met if the policy decisions made after a deliberative process are to be regarded as informed consent. Participants of deliberation need to be able to weigh the pros and cons of alternative options and to this end, access to information is essential. Fishkin illustrates this point by an example of participants who overestimated the percentage of the US government's 4 Certainly, the internet has mitigated these asymmetries by lowering the transaction costs for generating, validating,

shaping and presenting information. It is, however, an open question whether the internet will be able to fulfill a similar function in a context of strict copyright enforcement.

budget that was allocated to aid. When in the deliberative process these participants realized that a much smaller percentage of the budget went to aid, these participants revised their opinions on whether more or less money should go to aid (Fishkin, 2009: 35). Fishkin rightly observes that '[l]ack of information (or the provision of misinformation) the participants believe to be relevant can lead the deliberations astray' (Fishkin, 2009: 42). Once more, the point of critique is that this theory overlooks the informational requirements prior to the process of deliberation. For instance, matters of the US budget will not be deliberated, before it is established that the size of the budget is a problem, which requires the diffusion of information.

To conclude this brief overview, most of these theories incorporate the importance of the distribution of, or access to information into the conditions of a legitimate deliberative procedure. This condition will already have important implications for the democratically desired shape of an intellectual property rights regime. Nevertheless, none of these theories discuss how the constitution of a deliberative procedure also requires the diffusion of knowledge concerning the subject of deliberation, i.e, the problem a public needs to address. As Dewey argues, without this diffusion, the public that would participate in democratic deliberation is nonexistent. These two forms of

informational distribution are certainly related to each other. For instance, there can be an unequal distribution of knowledge among a population concerning an issue and for this reason the formation of a public can be inhibited and no deliberative procedure takes place. Examples are cases of insider knowledge of the harmful consequences of a product, such as cigarettes, which is not made public due to private interests. Also, when knowledge of a problem has constituted a public, all people will have some minimal level of information concerning the issue, i.e., there is a general awareness of the problem. In this situation there can still be inequalities in the distribution of knowledge among the participants of deliberation that affects the deliberative procedure, e.g., inequalities between participants who are experts versus those who are laymen.5 _{To further expand upon the issue of}

inequality of information in a deliberative democracy, the discussion will now turn to Bohman's theory.

Bohman: Deliberative Democracy and Inequality

In his theory of deliberative democracy, Bohman departs from a purely procedural account and instead argues that when one turns to actual deliberation, its justifications are less demanding than one would expect from the descriptions of ideal deliberative situations (Bohman, 1996: 15). This 5 In another scenario, a public could be formed in a society which does not encompass all the affected people. This

scenario is not particularly relevant as all deliberative theorists generally include the condition that all those affected are included into the deliberative procedure.

orientation towards the practice of deliberation is perhaps what encourages a comparison with Dewey's theory of democracy. One of the main points of similarity is that both theorists emphasize the purpose of deliberation and politics as a method to solve social problems through social

cooperation. Bohman defines public deliberation as 'a dialogical process of exchanging reasons for the purpose of resolving problematic situations that cannot be settled without interpersonal

coordination and cooperation' (Bohman, 1996: 27). This understanding of deliberation is shared by Dewey, who as Honneth argues, 'wishes to understand democracy as a reflexive form of community cooperation' (Honneth, 1998: 765). Furthermore, in Dewey's theory, 'the procedures of democratic will formation are grasped as the rational means with which a cooperatively integrated society attempts to solve its own problems' (Honneth, 1998: 765). The focus on problem-solving also entails a similar view of how the process of deliberation in general begins. For Bohman, public deliberation 'must begin with a shared definition of the problem' (Bohman, 1996: 55). A shared definition of a problem is comparable—if not, strictly speaking, equal—to the general awareness of a problem that constitutes a public, in Dewey's sense. Based on these broad similarities, Bohman's theory seems well-suited to complement Dewey's conception of the informational requirements of deliberation. What is especially of interest in this section, is Bohman's account of what substantive equality of deliberative resources entails—as opposed to a formal and procedural conception of equality—and how this form of equality applies to information.

Bohman argues that acceptable solutions can be formulated through public deliberation, when the process is governed by two democratic norms: political equality and effective participation. Political equality refers to the equal standing of all deliberators. The second norm of effective participation presumes that everyone can reasonably expect to be able to influence the deliberative process. Of these two norms, lack of effective participation is the main source of inequality in democracies and in deliberative procedures. Social inequalities tend to diminish a persons ability to influence or participate in deliberation, therefore, some form of equality is necessary for a fair deliberative process (Bohman: 1996: 107-8). According to Bohman, the relevant measure of equality is political capacities, instead of, for instance, equal opportunity or equality in resources. Political capacities refer to those capacities citizens require to take part in public dialogue as equals: 'In order to be minimally effective in deliberation, a deliberator must be able to initiate public dialogue about an issue or a theme, in which his or her reasons may receive deliberative uptake' (Bohman, 1996: 110).6 _{In a sense, inequalities and their consequences can be solved through public}

deliberation, at least when the issue of inequality can be raised as a problem in public dialogue. 6 Bohman's measure of political capacities could be regarded as a variant of Sen's concept of capabilities but then

specifically defined in terms of a citizen's ability to influence and participate equally in politics and public deliberation (Cf. Sen, 1990; Bohman, 1996: 110).

However, when a person's political capacities fall below a threshold level, she becomes trapped in a vicious circle where she can neither participate in deliberation, nor avoid being subjected to the decisions made in political procedures by others (Bohman, 1996: 126). In Hirschman's terminology, such a citizen has neither a voice, nor an exit option (Hirschman, 1970). Because such a situation undermines the justification of a democratic system, satisfying a minimal threshold of political equality in deliberation is 'a critical standard of democratic legitimacy' (Bohman, 1996: 111). The absence of political equality manifests itself in asymmetries in political capacities and functioning, which Bohman refers to as 'deliberative inequalities'. These inequalities occur in three variants: (i) power asymmetries in access to the public sphere; (ii) communicative inequalities that result in differences in someone's ability to take advantage of opportunities to participate in deliberation; and (iii) political poverty or the lack of developed public capacities, that inhibits the politically poor citizens from participating in the public sphere because their public capacities are not fully developed (Bohman, 1996: 110). Satisfying a minimal threshold level of political equality entails that 'all participants must develop their public capacities, have access to the public sphere, and have the opportunity to influence the course of deliberation in a favorable direction' (Bohman, 1996: 111).

Information also plays a role in this conception of political equality, although information is not strictly speaking a political capacity, i.e., possessing certain knowledge or having access to information is not a capability. In Bohman's theory, information figures as a resource that people can utilize in public deliberation with their political capacities. The emphasis on political capacities, however, does not mean that an equal distribution of information as a resource is no less a necessary condition of public deliberation. According to Bohman, an unequal distribution of power and

resources distorts communication (Bohman, 1996: 120). Inequality of information increases the voice and effective participation for some, as it diminishes the voice and participation of others. For example, a person working in the financial sector will be more effective in participating in

deliberations on financial reform because she can exploit her familiarity and knowledge of the subject. A second person, whose only familiarity with finance is a mortgage and a bank account, will have insufficient information by comparison to effectively participate in deliberation on financial reform. In the worst case, inequality of information on an issue can prevent citizens from initiating a public dialogue. The unequal distribution of information regarding the health risks of asbestos is an example of how inequality of information prevented citizens from raising a problem as a public concern. The asbestos industry had known about the risks involved in manufacturing products that use asbestos many decades before this became public knowledge:

By the late 1940s, asbestos manufacturers, industries that used significant amounts of asbestos in their operations, and their insurance companies all acknowledged internally that asbestos caused lung cancer, asbestosis and mesothelioma. Rather than adopt safety standards, switch to safer products, or provide protections for workers, these companies went to extraordinary lengths to conceal the truth about asbestos from workers, the public and the press

(EWG Action Fund, 2004).

Because there was no equal distribution of knowledge, the workers and the general community could not initiate democratic deliberations on this topic and were not able to address this problem as a public. As a result, there was no meaningful regulation of asbestos until the 1980s.

To avoid the negative consequences of inequality, the distribution of information should meet a threshold of resource equality: 'inequalities of resources, including information, cannot be so great that others can exploit the openness of democratic institutions. When citizens are unequal with respect to capacities to acquire and use information, exclusion is a by-product of the resultant inadequacies in public functioning' (Bohman, 1996: 130, italics TK). As the citation shows, both resources and political capacities are important for deliberation to be successful.To a large extent, the political capacities play a similar role to the dispositions that citizens should have for social inquiry in Dewey's theory. These capacities may be partially fostered through education, meeting a minimal threshold in socio-economic conditions or other alterations of social reality. Although these matters are certainly important, they fall beyond the scope of this thesis. For the purpose here, Bohman's main argument is that inequality of information undermines public deliberation. The insights of the previous two sections will now be applied to the debate concerning the

epistemological standing of democratic deliberation.

Epistemology and Deliberative Democracy

The purpose of this section is to show what role information plays in the debate concerning the necessity of epistemological criteria for the decisions that emerge out of a deliberative process. First, it will be argued that regardless whether one prefers to emphasize an internal or external criterion of justification, information is a necessary condition for deliberation. Second, it will follow from this discussion that a combination of the internal and external criteria better characterizes democratic deliberation.

There is a tension in democratic theory between internal and external justifications of democratic decisions (Estlund, 1997: 177).7 _{An 'internalist', on the one hand, would refer to the}

7 In his article, Estlund focuses on the moral correctness of democratic decisions and thus, his theory focuses specifically on moral epistemology. The discussion here applies his distinctions to a more comprehensive view of the epistemology of democratic decisions. This expansion seems appropriate as democratic decisions concern both matters of fact and morality.

fairness of a deliberative procedure to justify the outcome of deliberation. For example, it can be pointed out that during the procedure each participant had an equal opportunity to weigh in on the matter under discussion and therefore the final outcome of the process was legitimate. On the other hand, an 'externalist' would refer to a standard outside of the deliberative process to justify the rightness of the decision. It is insufficient to point out the fairness of the procedure, deliberation also needs to produce an outcome which is better than randomly choosing one of the possible options. In other words, the deliberative process needs to have an epistemological component that assists in the selection of a good outcome. The emphasis on a fair procedure by the internalist, requires her to incorporate the equal distribution of information as a requirement for a just decision. As the discussion of Bohman's theory showed, inequality of information violates the fairness of the deliberative procedure, as it diminishes a person's ability to effectively participate in the deliberative process. Therefore, a minimal threshold of equal access to, or possession of, information is a

necessary requirement of the internal criterion.

The externalist would have to be even more committed to informational requirements, as a brief discussion of Sunstein's theory will make apparent. In Infotopia, Sunstein assesses the adequacy of deliberation as a method of aggregating information. He presents empirical evidence that when knowledge on a certain matter is not already prevalent in a group, then through a deliberative process that group is unlikely to ascertain the facts on this issues (Sunstein, 2006: 84-6). This observation has an important implication for how the epistemological component of deliberation should be conceptualized. If there is no widespread knowledge among the participants concerning the problem and solutions that are being deliberated, then it is unlikely—or, at least, not more likely than a random selection—that the outcome of this process will satisfy an external standard of rightness. To satisfy the external criterion, there has to be an understanding of the problem the policies address and also an understanding of the way in which these policies would work. Thus, the implication of Sunstein's finding is that information concerning the topic at hand needs to shared by—or, at a minimum, be accessible to—the participants of deliberation.

It should be noted that Sunstein's evaluation of deliberation assumes that deliberation has a different purpose than the role deliberation has in a democracy. Sunstein evaluates deliberation on its ability to discern facts, whereas democratic deliberation's purpose is to raise problems as a political issue and to find solutions to these problems that are justifiable to everyone that will be subjected to these solutions. Put differently, the nature of democratic deliberation is not merely epistemological but, crucially, instrumental. Due to this instrumentality, the outcome of deliberation will be judged by its ability to solve a particular problem. This judgement will, therefore, have to rely on an external criterion of success (Anderson, 2006: 10). Moreover, the 'right' outcome is

unlikely to be determined in advance and is, therefore, not available as a standard to judge the validity of the outcome of deliberation.8 _{As Bohman argues, 'the emphasis on epistemic}

considerations in justifying deliberation should not be narrowly construed. One need not think of the correct decision as a truth "out there," somehow independent of the processes and procedures that discover it' (Bohman, 1996: 6).

The direction of this discussion already indicates that the appropriate criteria of a democratic deliberative procedure will be partly internal and partly external. As Richardson puts it, 'the

democratic process must be conceived both as attempting to arrive at true political views [i.e., an external criterion] and as giving intrinsic importance to what each individual citizen thinks ought to be done [i.e., an internal criterion]' (Richardson, 1997: 360). For the justification of the deliberative procedure, it is important that the outcome of deliberation satisfies certain epistemological criteria. The decision that is made through deliberation needs to based on a correct understanding of a problem and address this problem appropriately. These external criteria do not mean that there is one correct solution. For instance, if a country faces the problem of a budget deficit, there may be several solutions that could satisfy the epistemological criteria: the country could raise taxes, cut spending, increase spending, close tax loopholes, do nothing, etc. What is important for the external justification of the outcome is that the understanding of the problem is correct (e.g., How

problematic is a budget deficit? What causes a budget deficit?) and that the chosen solution addresses the problem (Does the policy actually reduce the budget deficit?).9 _{Deciding upon the}

direction and the details of the solution is contingent on the actual participators in deliberation. At this point, the internal criteria becomes important: the deliberative procedure should be fair. Each participant should be able to voice her opinion and be reasonably informed on the matter. To return to the example, a fair procedure demands that each participant understands the nature of the

problem (Why is the budget deficit problematic?) and how the proposed solutions address this problem (e.g., How would cutting taxes decrease the budget deficit? What would be the consequences for myself and others?). It seems that both criteria are equally relevant in the justification of deliberative democracy: the external criteria captures the instrumental, problem-solving nature of deliberation and the internal criteria expresses the democratic ideal of equal and fair participation. Finally, this section showed that both criteria rely on the distribution of

information.

8 From this it does not follow that there is no measure to determine if the outcome of deliberation was (morally) wrong. For example, when a minimal level of equality is not met during deliberation or when the chosen policy results in gross inequalities or violations of basic rights, then it is fair to say that the outcome of deliberation was not the right one.

This chapter analyzed the role of information in deliberative democratic theory. First, it was shown that information has a relevant role in the conditions specified by most deliberative democratic theorists. However, none of these theorists included the diffusion of information as a constitutive factor of deliberation, as Dewey did. Second, the consequences of an unequal distribution of

information were examined with the help of Bohman's theory. Third, it was argued that information is a relevant condition for both internal and external criteria of democratic deliberation. In the next chapter, the role of the public sphere, the media and the internet will be considered in relation to the necessary distribution of information.

3. Information in the Public Sphere and the Media

The discussion up to this point has stressed that the diffusion of information is a necessary requirement for democratic deliberation. It has been argued that information is an important

constituting factor of deliberation; as well as, an essential resource for a fair deliberative procedure with an epistemological dimension. The current chapter will explore the implications this view of information has on the way the public sphere and the media should function. The public sphere has already been mentioned several times in the discussion above, but the concept itself has not yet been fully elaborated. The structure of the public sphere determines whether the conditions for the deliberative procedure can be met. For this reason it is of interest to analyze how this structure affects the distribution of information. The media, in turn, forms an indispensable part of the public sphere in modern democracies and has an important role in the distribution of information.

Therefore, satisfying the informational requirements of deliberation, requires in particular an attentiveness to the organization of the media.

The first part of this chapter will further develop the concept of the public sphere with the help of Bernhard Peters's theory. In addition to the public sphere, Peters also emphasizes the role of public culture in public deliberation. The idea of public culture is relevant with respect to

democratic deliberation and intellectual property rights. First, in Dewey's theory, cultural works are one of the ways a public could become aware of a problem. Second, intellectual property rights determine the survival of, and access to, cultural works in the public sphere. Thus, if public culture is important to deliberation, then this insight should inform the requirements of intellectual property rights. In the second part of this chapter, the role of the (mass) media in modern democracies is discussed. Both the importance and the shortcomings of the media will be highlighted. The final part of this chapter analyzes the relationship between public deliberation and the Internet. The Internet is a relatively new component of the media and there is not yet any theoretical agreement on its ability to aid public deliberation. However, changes in intellectual property rights will almost certainly determine the future function and structure of the Internet. It is, therefore, important to assess the Internet's (potential) role in the public sphere.

Peters: The Public Sphere and Public Culture

The ideas of the public sphere and public deliberation are interrelated. On the one hand, the public sphere refers to 'a kind of collectivity with a particular communicative structure, or a sphere of communicative action with especially demanding characteristics and functions' (Peters, 2008a: 34).

In this sense, democratic deliberation takes place within the public sphere. On the other hand, the public sphere can be characterized 'as the totality of processes involving the discursive formation and mobilisation of opinion regarding collective problems' (Peters, 2008a: 39). Public deliberation, in this slightly different sense, constitutes the public sphere and the public sphere makes up 'the entire universe of public deliberation occurring in a country' (Peters, 2008b: 80).10 _{Similar to public}

deliberation, the public sphere's purpose is to provide democratic legitimacy to political processes by giving citizens the opportunity to influence politics. Perhaps the critical point of difference between the public sphere and public deliberation is that while public deliberation on a particular issue may terminate, the public sphere will remain in existence.11

In his theory, Peters discusses the conditions and limitations of the public sphere. Through this discussion he challenges the realizability of the ideal model of the public sphere without entirely denouncing the ideal as a normatively valuable goal to attain. The conditions of the public sphere are rather similar to the conditions of public deliberation: equality, reciprocity, openness, adequate capacity and discursivity. Realizing these conditions is complicated in the face of hierarchy, differentiation and stratification in the modern public sphere. For instance, because modern democratic societies have large populations, it is necessary that there are fewer speakers than hearers and the communication process relies on mass media. There are further differentiations in communicative roles, e.g., representatives, experts, intellectuals and advocates (Peters, 2008a: 48). These characteristics of the modern public sphere make it harder to fulfill the conditions of public deliberation but no less important.

Once again, the distribution of knowledge is raised as an important condition. 'A fundamental problem for modern public spheres is the enormous increase in the significance of cognitive

knowledge for social life, and the manner in which access to such knowledge is socially distributed' (Peters, 2008a: 46-7). Peters argues that reciprocity in communicative opportunities requires that there are no structural asymmetries in the distribution of knowledge. There are two ways these structural asymmetries can occur in the public sphere: through a monopoly on information and a 10 Peters argues that the public sphere and public culture are still mostly national phenomena (Peters, 2008b: 70). 11 Critical theorists have criticized a conception of the public sphere that (i) brackets inequalities and differences in

status; (ii) posits that it is desirable to have one public sphere instead of several competing publics; (iii) posits that deliberation should be restricted to matters of the common good, instead of private interests; (iv) posits that there should be a sharp distinction between civil society and the state (Fraser, 1990: 62ff). Many of these points of critique are certainly valid and are not precluded by the conception of the public sphere developed in this thesis. This thesis, however, has a different perspective on the nature of politics. Fraser's critical theory emphasizes the importance of identity politics in the public sphere. Whereas in this thesis, politics are taken as a means to solve (public) problems. To be sure, identity politics have implications on practical problems that need to be solved through politics.

Therefore, the differences between the two perspectives may practically be negligible. Indeed, as Fraser notes, separate competing cultural, ethnic publics 'need not preclude the possibility of an additional, more comprehensive arena in which members of different, more limited publics talk across lines of cultural diversity. On the contrary, our hypothetical egalitarian, multi-cultural society would surely have to entertain debates over policies and issues affecting everyone' (Fraser, 1990: 69). The focus in this thesis is then on the 'more comprehensive arena'.

monopoly on specialized knowledge. When a person has a monopoly on information, she can use this informational advantage to strategically influence deliberation. For example, a participant of deliberation may share the knowledge which support her position but keep to herself the knowledge that undermine her case. A monopoly on specialized knowledge concerns information which

requires a special competence to comprehend. This knowledge itself can therefore be inaccessible, even if it is made public (Peters, 2008a: 45). Unfortunately, due to the complexity of knowledge and the differentiation of tasks in modern society, '[t]he public must rely on judgements and

recommendations issuing from the specialised systems of action that develop and apply this knowledge' (Peters, 2008a: 47). There are, however, some measures and practices that can be undertaken to counter these structural asymmetries. For example, there could be self-regulation in specialized systems, such as the sciences, or an expert system of checks and balances. More importantly, the overall public's knowledge could be raised and certain engaged members of the public could acquaint themselves with specialized areas of knowledge (Peters, 2008a: 47-8). In an analogy of Bohman's argument, the point of such measures is to ensure that the unequal distribution of knowledge in the public sphere does not fall below a threshold level, after which citizens no longer have the opportunity to raise problems in public deliberation.

Peters also stresses the function of public culture in public deliberation. He defines public culture as 'all those symbols and meanings that circulate publicly or are publicly accessible, related to or addressing a larger public' (Peters, 2008b: 69). A distinction can be made between discursive meanings and presentative meanings. Discursive meanings concern the expression of ideas and beliefs, whose validity can be contested or defended (Peters, 2008b: 70). Examples of discursive meanings can be found in non-fiction books, the press and broadcasting. In contrast, the truth or validity of presentative meanings are not open to a similar kind of contestation. Presentative

meanings are found 'in the art and in popular entertainment, in literature, in stories and fairy tales, in signs, photographs, advertising fashion, sports' (Peters, 2008b: 71). Peters focuses primarily on the discursive meanings in his analysis. However, as Dewey argued presentative meanings, such as art and literature, are powerful methods of raising awareness for a particular problem in the public sphere and should therefore be included in an analysis of the relation between public culture and public deliberation. Public culture relates to public deliberation because '[i]deas and interpretations that are part of the cultural repertoire function as a background and as a resource for public

deliberation, as unstated assumptions and as a reservoir for the articulation of specific ideas'

(Peters, 2008b: 110). On the one hand, public culture can function as a resource that participants of deliberation can utilize to support their claims and arguments. On the other hand, parts of public culture can be questioned, contested and criticized in a deliberative process. Through this process,

'[p]arts of public culture are confirmed and passed on, while other parts are revised or invented anew' (Peters, 2008b: 110). Finally, public culture can change with the emergence of new information and as a consequence the background or 'ingredients' of deliberation will also have changed (Peters, 2008b: 113). Thus, the concept of public culture further emphasizes the importance of access to information and cultural works in the public sphere.

Media and the Distribution of Information

The media has several functions in the public sphere. Regarding democratic deliberation, the media's function is twofold. First, the media serve as one of the platforms where deliberation takes place (Peters, 2008b: 77). Second, the media should distribute information and communication that is required during the process of deliberation and to initiate a deliberative process: 'The currents of public communication are channeled by mass media and flow through different publics that develop informally inside associations' (Habermas, 1996: 307). These two functions show how the media is an essential requirement for the modern public sphere and democratic deliberation. The central position the media takes in modern democratic deliberation by necessity, also places certain demands on the way the media should be structured: 'citizens […] need access to channels of

communication with one another and with government decision makers. This requires that media be open and accessible to all' (Anderson, 2006: 15). Unfortunately, this requirement may be harder to satisfy in reality.

As Peters observes, the mass media have an ambiguous status in the public sphere, as they have a public function, but their structure—the way the media operate—is non-public: 'In the public sphere the mass media to some extent constitute their own specialised subsystem, with complex structures of production and distribution for cultural products and services' (Peters, 2008a: 50). Part of this structure is determined by the fact that the media are a product of a private, public or semi-public enterprise that has to be oriented towards fulfilling the demands of its consumers and advertisers. This orientation results in several media constraints that make it harder to realize the ideal of democratic deliberation in modern society (Kleinschmit, 2012: 74-5). For example, entertainment (or infotainment) will have a larger presence in the media than deliberative content because these products attract an audience and thus, advertisement. The question is whether the structure of the mass media inhibits democratic deliberation and in particular the equal distribution of information.

Unfortunately, it cannot be guaranteed that the structure of the media will satisfy the

dynamics of mass communication and interfere with the normative requirement that relevant issues, required information, and appropriate contributions be mobilized' (Habermas, 2006: 418, emphasis his). Habermas argues that power in the public sphere is not by definition illegitimate but it can distort communication when it is wielded in a harmful way. Along with political, social and economic power, there is also a form of media power. One instance of the media's power derives from its function as a gate-keeper: journalists and other people working in the media system 'select and process politically relevant content and thus intervene in both the formation of public opinions and the distribution of influential interests' (Habermas, 2006: 419). Through their function as a gate-keeper in the public sphere 'the communications media intervene with a selectivity of their own in [the] social distribution of knowledge' (Habermas, 1996: 325). In other words, part of an equal distribution of information is dependent upon the mass media not abusing their role as

gate-keepers.12 _{According to Habermas, the use of media power is legitimate to the extent that the media}

is functionally independent, meaning that the media adheres to its own normative code and is self-regulated. In effect, the media system should remain independent from the political and economic systems. (Habermas, 2006: 419). Examples where such media independence is absent are countries where the media is state-controlled. In these countries, the state can exert a disproportional amount of pressure on the media coverage through formal or informal methods. The failure of the Turkish media to cover the recent protests in Gezi Park are, for instance, an indication that the Turkish government controls the media to a significant extent (Horsley, 2013). Private enterprises that have a media monopoly also endanger the media's functional independence and its ability to distribute relevant information. For example, Silvio Berlusconi used his media corporation for political self-promotion and 'succeeded in changing the media culture of his country, shifting it from a

predominance of political education to an emphasis on marketing of depoliticized entertainment' (Habermas, 2006: 421).

Habermas's requirement of functional independence as a sufficient condition of the

democratic legitimacy of the mass media seem rather minimal compared to the conditions of the ideal deliberative procedure. The requirements, however, could in practice be sufficient to ensure a distribution of information, via the media, that does not fall below a critical threshold level. When the media do not or cannot meet this threshold level, the democratic deliberation in the public sphere will fail. It is therefore important that the media are able to distribute information and provide a platform for deliberation in the public sphere. Especially, since the modern mass media provide the conditions for deliberation among large populations (Peters, 2008a: 51).

12 Media power further consists of the ability to set the agenda, prime and frame issues (Habermas, 2006: 419). These abilities do not directly influence the distribution of knowledge but can affect the process of democratic deliberation.

In addition to the requirements on the media, Habermas also considers it necessary that 'anonymous audiences grant feedback between an informed elite discourse and a responsive civil society' (Habermas, 2006: 411-2). Mediated political communication in the public sphere can only support democratic deliberation, if 'an inclusive civil society [empowers] citizens to participate in and respond to a public discourse' (Habermas, 2006: 420). To satisfy this requirement there needs to be a feedback loop between the formal public sphere and the informal public sphere. The feedback citizens give to 'public opinion' ensures that the public sphere has a reflexive character (Habermas, 2006: 417-8). There is a danger that the mass media constrain the feedback loop because the direction of media communication tends to be one-way. The Internet, however, is a medium that may potentially empower citizens in the informal public sphere to respond to deliberation and decisions made in the formal public sphere. The next section will turn to this medium and evaluate its potential to facilitate democratic deliberation.

The Internet and Public Deliberation

The Internet is relevant to the discussion here not just because it is a relatively new medium that may support democratic deliberation, but also because the Internet illustrates the tension between democracy and intellectual property rights regarding new technology. For example, the

implementation of the first copyright laws had been prompted by the invention of the printing press; and patents are almost by definition linked to technological innovation. Today, the most important technological development interacting with intellectual property rights is the Internet. The relative ease with which intellectual properties can be copied and shared, both legally and illegally, on the Internet has especially attracted a lot of attention. The Internet, however, is more than merely a medium through which intellectual property rights can be infringed or distributed. Society is becoming increasingly integrated with the Internet. For example, many forms of communication now use the Internet (email, Skype, Twitter, etc.). Part of the economy has also become part of the Internet: a large number of companies use the Internet as part of their organizational infrastructure; there has been a growth in online retail businesses; and the number of careers that depend on the Internet has expanded. Finally, the Internet is widely used as a medium for political and cultural expression. For this reason, it is important to consider the social utility of the Internet, particularly regarding its relation to democratic deliberation. Before these issues will be discussed further, it is useful to briefly define the Internet's character.

The Internet can be characterized as a conglomeration of different networks that enable the distribution of information and various forms of communication. In a sense, the Internet is rather