New article: The Path Dependence of European Copyright

I’ve mentioned that it was on the way (in swedish) before, and have now published a longer academic article on how the development of European copyright is locked in and too (path) dependent on formative moments in the past, making it stuck in its own formulations, standards and metaphors. Which among other things tends to increase the general surveillance of everyone.

In order to make such a claim understandable, I thought I’d make a little longer post today.

The academic article is called The Path Dependence of European Copyright and can be found in Scripted, a journal based in the School of Law, University of Edinburgh (thanks also to Péter Mezei for reading and tips). Don’t miss my guest post at Torrentfreak: Copyright Is Like QWERTY: Locked-In and Retrospective.

In short, I use path dependence theory, the notion of lock-in effects to analyse the legislative trend. It is a way to try to grasp the bigger (legislative) picture, in order to detect the most important problems that this brings. For obvious reasons there are not much space for detail regarding the analysed regulations, it is an analysis based on legislative consequences and initiatives – infosoc, IPRED, data retention directive, ACTA, telecoms reform package – but necessary details for the grand picture is nevertheless brought forward.

To grasp the internal path dependence of European copyright is to try to grasp a grander development, a trend consisting of a multitude of details. As most people know, there is something very inconsistent and discordant between online behaviour and copyright regulation. So, when InfoSoc criminalises more actions, IPRED strengthens copyright enforcement, disconnection from internet for copyright violators is discussed widely over Europe and ACTA is non-democratically negotiated it all says something about the bigger trend, about the track chosen and the consequences that can be singled out. And why it is interesting in the first place is because of its inconsistency with social norms and behaviour.

If our recently finished study on TPB is the side of the behavioural practice, this article gives a good picture of the other side – the legal development – of the battle between social norms and legal norms.

Law and its normative past
It is not chocking or strange that law is in many aspects very dependent on its history, in the sense that history matters. However, concepts and principles tend to create paths that also lock in future legal directions. The problem here is not that legal developments relate to its past, or lock in standardised modes of prescribed conduct. On the contrary, these elements serve as parts of a key function of law – the principle of predictability. And problems occur when they relate to the past in such a manner that it fails to include or to grasp important changes in society, and it is so locked in that it cannot even consider alternatives that might be more efficient, given the new conditions in society. In short, problems occur when law is too path dependent in relation to social change, especially when the conditions of the world has changed so drastically.

…and what about the path dependence of European copyright?
First, the legitimacy issue deals with the fundamental conflict between social and legal norms, making the path dependence analysis important in the first place. This stems in part from the fact that the global copyright construction is a legal complex that in general is based on ideas of the conditions of an analogue world for distribution and production of copies, but it is armed with increasingly protective measures when faced with human conduct in the context of digital networks.

Second, the path dependence of European copyright serves as a strong argument for those who benefit from its conservation. Appeals to tradition impede change by privileging the status quo in terms of an increased protection. The reason why these appeals still prevail as dominant ones is a consequence of the linkage to a strong industry protecting and voicing them, thereby complementing the internal functions of path dependence.

Third, there are power structures that contribute to make this legal path colonise other legal paths. When concerned interests, relying on the power balances of the regulation drafted in non-digital times, seek to maintain their position, other values that the law protects become secondary, such as general consumer privacy and sometimes property. For instance, the Data Retention Directive describes how copyright enforcement may become embroiled in legal efforts against terrorism, the Telecoms reform package shows how it can get tangled up in telecommunications market issues. For that matter, the ACTA shows how copyright can increasingly be understood in terms of trade, and hence, be part of trade agreements that can circumvent more democratic legislative processes on a national or supranational level.

Fourth, from the strong path dependence of copyright there derives a clear tendency to target the ISPs and other intermediaries in an attempt to keep the copyright path intact. The IPRED is a clear example of this, and also the Telecoms Reform Package and, the ACTA further emphasise this fact. There are plans to revise the IPRED, and a recent report from the Commission discusses (PDF, on page 7) that the currently available legislative and non-legislative instruments are not powerful enough to combat “online infringements of intellectual property rights effectively”, which leads to the conclusion that ISPs could be further targeted and involved. The key role of the ISPs is, however, also part of a bigger issue that concerns the character of the Internet as we know it and the features and possibilities for the online enforcement of the law.

Fifth, the development of European copyright, in its broad sense, not only re-builds the Internet in terms of traceability (the IPRED and possibly the Data Retention Directive) but also legal enforcement in terms of mass-surveillance. The potential of technology and its embeddedness in all aspects of social life test the limits on the effectiveness of legal action in determining the borders of legitimacy. It is important to be clear about the fact that the development of a general mass surveillance of the entire population is not an issue to be taken lightly or a development that should be allowed to pass unscrutinised.

The underlying formulations of how copyright is constructed and conceptualised is reproduced and strengthened in various related and sometimes only tenuously related legislative efforts. The trend in European copyright is therefore strongly protectionist, through the expanding and strengthening of rights and their enforcement, and in that it is self-reinforcing and locked in to certain standards.

Further, the path dependence of European copyright serves as a strong argument for those who benefit from its preservation, signalling that there are strong power structures that support the colonisation by this legal path of other legal paths that protect conflicting rights.

Thus, the path dependence of copyright leads to an imbalance of principal importance between the interests at stake. The imbalance lies in that a such a special interest is allowed to modify methods of legal enforcement from the reactive and particular to the pre-emptive and general. The special copyright interest gains at the expense of the privacy of everyone.

Read the entire article here.
Read my guest post at Torrentfreak: Copyright Is Like QWERTY: Locked-In and Retrospective.