Bridging the Gaps Between Social and Legal Norms Concerning Protection of Intellectual and Artistic Creations: On the Crisis of Copyright Law in the Digital Era

• DOI: http://doi.org/10.1002/jwip.12005
• Author: Katarzyna Gracz
• Date: 01 March 2013
• Published date: 01 March 2013

Bridging the Gaps Between Social and Legal Norms

Concerning Protection of Intellectual and Artistic

Creations: On the Crisis of Copyright Law in the

Digital Era

Katarzyna Gracz

European University Institute

The paper aims at explaining the current crisis of copyright law in the digital era. The primary hypothesis of the study

is that the core of the problem can be found in the divergence between legal and social norms concerning the access to

intellectual and artistic creations. The author discerns two main sources of the conflict between these two bodies of

norms. The first is the result of the particular dynamics in the development of technology, copyright law and social

norms that are perceived as a global phenomenon. The second is the outcome of specific local particularities that led in

some societies to the evolution of social norms which differ considerably from the contemporary intellectual property

regime. In both cases, however, the core of the problem lies in the fact that consumer held social norms (developed

either on the global or local level) strongly oppose the absolute property rhetoric present in most of the international

regulations in copyright law.

Keywords copyright; Eastern Europe; colonialism; globalisation

It seems that copyright law has been at a crossroads since the digital revolution. Initially, the

introduction of technologies allowing consumers to access fast, easy, cheap and effective reproduction

of cultural and knowledge goods, and more recently—the advent of Internet, that enables users to

exchange an unlimited number of files containing protected contents, have seriously challenged

the logic of copyright law. The response of the legal system to the perceived inefficiency of the

solutions applied so far is the recent tendency to the exorbitant expansion of copyright law. This

expansion takes various forms, the most important being: (1) prolongation of the terms of protection;

(2) extension in the catalogue of the goods protected, that results in an inclusion of the commodities

whose very nature is alien to the copyright regime (e.g. computer programs); (3) introduction of

the technological means of protection simultaneous with legal restrictions and a legal ban on

circumventing encryptions

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; (4) reduction of the catalogue of limitations and exceptions to copyright;

(5) increasing tendency of transferring copyright regulations from the private realm into that of criminal

law, etc.

In general, the trend could be described as strengthening the protection of the right holders through the

introduction of the paradigm of absolute and unlimited property at the expense of consumers’ interests.

Moreover, the reforms tend to universalise the regulations worldwide due to the recent globalisation of

intellectual property law.

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Paradoxically, however, the increasing severity of copyright law is not

accompanied by a rise in the level of observance of its legal rules and respect towards the current regime.

The open-content paradigm, promoting alternative values to those of the expanding proprietary logic is

gradually gaining visibility in public discourse, the illegal file-sharing in the network is flourishing, and

actions opposing contemporary intellectual property reforms are often described using the rhetoric of

revolution and war.

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©2013 John Wiley & Sons Ltd 39

The Journal of World Intellectual Property (2013) Vol. 16, no. 1–2, pp. 39–57

doi: 10.1111/j.1747-1796.2013.12005.x

Hypothesis and Research Questions

Given the aforementioned circumstances this analysis will be guided by the following research questions:

1. What mechanisms underlie the current crisis of copyright law in the digital era?

2. Why is the legal system following the wrong pattern notwithstanding the signals which suggest that its

response to the perceived crisis of copyright law is ineffective and inadequate to the needs of the digital

environment?

3. What should be modified to increase the efficiency of copyright regulations?

The analysis that follows will be aimed at answering the aforementioned research questions.

Methodology and Description of the Analysed Model

The central part of the analysis focuses on the description of mutual interactions of the legal system as a

whole and its particular branches, especially copyright law and property law.

Simultaneously, the study reconstructs the mutual interplay between the legal system and the

following elements that comprise environment in which the legal system acts: technology,social norms

and collective interests of four groups representing most important actors in the described model, namely

the state authorities, creators, public and the intermediaries on the market between the creators and the

public. It shows how the interactions of those elements with one another and with the legal system led first

to the introduction of the proprietary paradigm in the protection of intellectual creations, and then to the

degeneration of this paradigm that caused the contemporary crisis of copyright law in the digital era.

Legal system hereinafter is understood as in the Systems’ theory developed by Niklas Luhmann and

Gunther Teubner (Luhmann, 2008; Teubner, 1988), that is as an autonomous, self-referential normative

system that is separate from other normative systems (i.e. religion, morality, social norms), and which is

independently setting its own boundaries in the process of autopoietic operations according to the bilateral

code: legal vs unlegal.

Technology is approached in this paper in a broad sense, as defined by the American sociologist Read

Bain, who in the 1930s wrote that “technology includes all tools, machines, utensils, weapons,

instruments, housing, clothing, communicating and transporting devices and the skills by which we

produce and use them.” (Bain, 1937, p. 860)

Social norms

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are here interpreted as normative statements (Homans, 1961, p. 12) that identify social

expectations arising in the course of repeated interactions (Bicchieri et al., 1997, pp. 25–7; Wrong, 1994,

p. 48). They are enforced either through the application of internal sanctions of the ego which emerge as a

result of the internalisation of the norms (Durkheim, 1915, pp. 236–45; 1951) and/or through the

application of external, informal (i.e. non-legal) social sanctions (Parsons, 1952, p. 38; Durkheim,

[1903] 1953, pp. 36, 43). Social norms might, but do not necessarily have to, coincide with legal norms.

Even if they do coincide, they belong to diverse normative systems.

Collective interests are here understood as covering four groups: the collective interests of:

(1) authors/creators, (2) the public, (3) intermediaries on the market between the authors and the public,

(4) state authorities. Interests are understood as comprising both advantages of financial and non-financial

nature. However, in the case of the intermediaries, due to the nature of those entities and their role in the

network of interdependencies analysed below—emphasis will be placed on the commercial interests,

stemming from the mass reproduction and distribution of copyrighted works. The interests are described

as collective because they are perceived as common for the representatives of the respective groups, not as

specifically relevant for some individuals only (e.g. creators’ interests are those that are perceived as

common for all or most of the creators in the particular territory and historical period).

Katarzyna Gracz Bridging the Gaps Between Social and Legal Norms

©2013 John Wiley & Sons Ltd

40 The Journal of World Intellectual Property (2013) Vol. 16, no. 1–2