The article 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.An English-speaker since birth and an IP academic since 1973, this Kat must admit his ignorance. He has never seen the words 'autopoietic' and 'distanciated' before, and thinks that he would struggle to explain to anyone, without the text of the Abstract before him, what this article is about. This may be the result of (i) too much blogging and not enough scholarly reading in recent years, or (ii) over-exposure to IP practitioners and their clients, who like to keep things simple. Be that as it may, he is most concerned that the rift between scholarship and IP practice -- which has long existed when it comes to the writings of economists -- is growing. The rift is not merely between the theoretical and the real, between principle and practice, but is widening even in the manner in which ideas are shaped, expressed and discussed. Curiously, while legal writing is becoming increasingly simple and accessible in the UK (consider the judgments in recent times of Sir Robin Jacob and currently Arnold J and Birss J, among others), academic writing is becoming increasingly dense and complex. This Kat hopes that this will not throw up permanent barriers to the exchange of ideas between academe and practice.
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 (ie 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 article 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 favouring 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.
So here's the challenge: how clearly and succinctly can readers of this weblog summarise the Abstract above, so that it can be understood and appreciated by an informed reader on a single reading, without the aid of a dictionary? Do send your entries to email@example.com. There is no prize other than the satisfaction of having made what looks like an interesting argument easier to understand.