Regulatory failure of copyright law through the lenses of autopoietic systems theory

Katarzyna Gracz (1) , Primavera de Filippi (2)

1 Department of Law
2 Harvard Law School

The paper explores the mechanisms that led to the current crisis of copyright law in the digital environment (understood as its inability to regulate social dynamics as regards the production, dissemination and access to creative works) by applying the concept of law as an autopoietic system. It analyses how the copyright regime (a subsystem of the legal system) evolved over time, by scrutinizing the interdependencies between copyright law and the other constitutive systems of its environment: the creative system (concerned with the creation, reproduction, distribution, and access to creative works) the political system (comprising both the State and the Church), the economic system (ruled by right holders and intermediaries on the market for creative works), and the technological system. It will be shown that every new development in the technological system irritated the remaining systems, thereby stimulating the evolution of the overall ecosystem. For a long time, copyright law managed to properly adjust to the environmental changes brought by technological developments, so as to successfully regulate the production, dissemination and access to creative works. It is only with the advent of Internet and digital technologies that copyright law's selective response to environmental stimuli resulted in its failure to adapt to the new reality and, consequently, in the loss of its regulative power. Reacting mostly to the pressures of the economic and political systems (i.e. the lobbying of right holders and intermediaries), while neglecting the needs of the creative system, and even failing to adjust to the specificities of the changing technological system, copyright law eventually disrupted the balance of the surrounding environment. Furthering the economic interests of intermediaries (often at the expense of the public and in certain cases of the authors) created a series of divergences between legal norms - increasingly restricting the access, use and reuse of creative works - and social norms (produced within the creative system, and supported by the new opportunities of digital technologies), which advocate for the free use and reuse of digital works. Over the years, copyright law distanciated itself so much from the social reality in which it operates that it has lost most of its credibility and applicability in the digital world. Hence, the paper contends that, for copyright law to successfully regulate the production, dissemination and access to cultural works, it must be radically reformed in light of the intrinsic logic and needs of all constitutive systems of modern society, without favoring those of the economic and political systems over those of the creative system. It concludes that society (as a whole) might only benefit from the new opportunities offered by digital technologies if copyright law properly adapts to the digital era by embracing - rather than opposing - the specificities of the digital world.

Mots clés: copyright; intellectual property; systems theory; legal theory

Mots clés: droit d'auteur; propriété intellectuelle; systèmes complexes; théorie du droit

Domaines: Droit

Katarzyna Gracz, Primavera de Filippi. Regulatory failure of copyright law through the lenses of autopoietic systems theory. International Journal of Law and Information Technology, 2014, pp.46. ⟨hal-01026113⟩