The Role of Copyright in Free Access Movements and Vice Versa

The Role of Copyright in Free Access Movements and Vice Versa

Ângela Kretschmann [1]

Cite as: Kretschmann, A., "The Role of Copyright in Free Access Movements and Vice Versa", European Journal of Law and Technology, Vol. 4, No. 3, 2013.

Abstract

The objective of this article is to discuss the role of copyright in movements of free access, and vice versa. The doctrine has suggested that Open Access is a new rule to be built within copyright. However, there are opinions against this, in the sense that copyright should be built within the rules of information law. How the movements searching for free access to copyrighted works can influence or transform the current regulation, statements, and understanding of copyright extension? Moreover, the question must also be answered from the viewpoint of copyright itself, in the sense of: what can it do for the fight for access, like Open Access: improve, strengthen, undermine, or weaken the access?

This gives rise to disputes between competing interests. Therefore, it is necessary to understand the possibility of copyright really being influenced or even integrated by the movements of free access to copyrighted works. Thus, this article is also focused on information access and on the battle for independence of the universal access despite some reluctance of governments and economic industries, which want to control the access, reducing access and information to consumer products with the purpose of making profit. [2]

1. Copyright and Movements of Access

In the digital age, and especially in developing countries, suddenly copyright has become a tug of war, where some see it as a threat and try to eliminate it, believing that it is responsible for blocking access to information, and others see it as a kind of great rescuer or savior. After all, it is important to ask if the internet is a friend or an enemy of copyright. Can it be both? What is the true relationship between copyright and the movements of access such as Open Access, Creative Commons, and Free Software?

It is necessary to look for an answer coming from different places, such as the philosophy of the movement of access itself. What does it mean? The definition of access implies a potentiality. One of movements of access, Open Access, implies also a potentiality regarding the fundamental rights of information and culture, and on its base, human dignity. It is also important, then, to distinguish between right to access and right to information. Right to access is not in the same dimension as right to information, because if you have access, you access something (information, intellectual works, etc.), but you do not achieve access itself. Access precedes information. Finally, it is important to clarify the existence of an individual right to access and a collective right to information. [3]

According to Peter Suber, "Open-access (OA) literature is digital, online, free of charge, and free of most copyright and licensing restrictions. What makes it possible are the internet and the consent of the author or copyright-holder." [4] However, in the present article, the concept of open access is used only as an example, as compared to other movements, or as a tool, such as the Creative Commons movement or the Free Software movement, to show how access itself is part of the human need to increase dignity. We also intend to demonstrate that this is why so many movements or activities were created with open or almost open access because this is a fundamental right of human beings. I understand that although Peter Suber, Lawrence Lessig, and Richard Stalmann stated that their proposals are not a threat to copyright, their movements are a result of the restrictions of copyright rules. Therefore, it does not matter if they say that Creative Commons, Open Access, and Free Software are compatible with copyright law. The fact is that they are resulting reactions that were born to openness, to free contents that are closed by copyright rules.

There are two different kinds of rights here: the access right and the copyright. The first question, as pointed by Thomas Hoeren (2006) [5], is whether there exists an access right in copyright law. Or, as Jane Ginsburg (2000) [6] argued, whether copyright is an access right too. In fact, in the actual legal context "access right" relates only to an exclusive right to restrict public access to copyrighted works, and we can agree with Thomas Hoeren that in Brazil "there is no such thing as one access right in copyright law" either. [7] In fact, in the actual legal context "access right" relates only to an exclusive right to restrict public access.

The disagreement can be understood as a matter of systems, since on one side we have the copyright, and on the other, the author's rights, and it could at least partly explain the discrepancy. However, Ascensão (2010) also shows that here lies a matter of substance concerning the copyright rules applicable to technological devices of copyright of websites, but: "Anyway, either with regulations (art. 6) against the circumvention (No. 1), either with the benefit of the measures (No. 4), the fact is that 'never becomes clear whether the use of such measures is or not a content intellectual right, so if there is a law school that the author covers'". [8]

So the political question raised by Thomas Hoeren is whether we want an access right to exist. Or we could ask who wants an access right. According to Hoeren, the big players already control the access to digitalized products. In fact, the big players integrated their own view of copyright in the programming codes. Therefore, the "Majors" focus on technological solutions with the purpose of denying access, even if the doubts of desirability of these technical strategies from the users and creators' perspectives remain: "The question is whether we want to prevent circumvention devices which are undermining these tools." [9]

In some recent cases, courts interpreted the Digital Millennium Copyright Act (DMCA) narrowly so as not to restrict reverse engineering, considering that the DMCA must be interpreted within the public purpose of copyright law. In the Federal Circuit case (USA) of Chamberlain Group vs. Skylink Technologies, Inc., the Court stated that the key to understand the dispute lies in the relationship between access and protection, and concluded that "Copyright law itself authorizes the public to make certain uses of copyrighted materials. Consumers who purchase a product containing a copy of embedded software have the inherent legal right to use that copy of the software. What the law authorizes, Chamberlain cannot revoke." (...) "Chamberlain's proposed severance of "access" from "protection" is entirely inconsistent with the context defined by the total statutory structure of the Copyright Act, other simultaneously enacted provisions of the DMCA, and clear Congressional intent." [10]

It is possible to ask if open access is a philosophy, as well as a system of self-regulation. It is possible to say that, as a philosophy, open access emerged as a reaction to the property exclusiveness and self-regulation came as a way to run away from the "closure" of copyright rules. Anyway, open access is based on licenses, as it can be a self-constructed system but cannot go against the law system. Thus, the author or copyright holder only - and they cannot do more than this - allow the use of the protected work. The usage is free, like copyleft, but the work remains protected by copyright.

What is necessary to clarify is that, from the philosophical point of view, despite the difficulties in defining "information law", and despite the protection of information by copyright, "it has to be considered as only one of various others [sic] elements of information law" - where various different topics are also and all together intermingled, such as media law, public access rights, privacy regulations, and antitrust issues of access to information. Thomas Hoeren also indicated that there were no needs to change copyright meaning while copyright only had to deal with the protection of fine arts. Things changed specially with the inclusion of software and databases in copyright law. From the historical considerations, these conclusions are concerned with a different understanding of the concept of copyright law. There is a meta rule determining that any information can be used by and everybody for free: "The idea of free ideas in copyright - only relates to the meta-concept of information law that information is the common heritage of mankind and thus free to be used by everybody" [11] - and this is specially correct when taking into account that copyright protection exists for the benefit of the public, not the benefit of individual authors. In fact, considering the "exceptions" as limitations, and not exceptions, in favor of fundamental rights such as freedom of the press, public access or the necessity of research, it is possible to find a better balance between copyright law and information law, as copyright is a part of information law and cannot work against its aims, that means to say, the benefit of the public.

And from the point of view of access (RIFKIN, 2000, p. 266), the current Age of Access imposes fundamental questions about how we want to restructure our most basic relationships to one another, determining kinds as well as levels of participation. [12] The movements of Free Software and Creative Commons are similar, the latter was born from the first, and these are movements trying to change the status of contents that were born as slaves of the copyright system. Considering this, it is important to revisit the beginning of the ideas about copyright and piracy.

2. The History of Piracy and Free Access Movements is Connected to the History of Intellectual Property

The history of access must be considered taking in account the history of piracy. This is important because the history of piracy begins when access started to be restricted. To understand the historical effect of the concept of piracy, it is important to analyze its history. Such analysis makes it possible to understand how the free access movement emerged in reaction to copyright laws. On this matter, Adrian Johns (2009, p. 6) says "… if piracy is the definite transgression of this moment, it too should be a phenomenon without a past". In fact, he says, there could be a prehistory of piracy, but not a history, and, especially for jurists and policymakers, piracy has a derivative status: "it simply reflects the rise of intellectual property". [13]

Historically, piracy consisted of the reproduction of a large number of unauthorized copies. The definition was expanded, and today any copy, including only one, is a piracy copy, especially in some Latin American and African developing countries.

There was also an institutionalized piracy, when it was interesting for those who controlled the industry: "The film industry of Hollywood was built by fleeing pirates. Creators and directors migrated from the East Coast to California in the early 20th century in part to escape controls that patents granted the inventor of filmmaking, Thomas Edison" (LESSIG, p. 33). Record Industry and Radio were also born from piracy. The same happened when the video recorder came. But they were able to adapt their business to that also. File sharing is not a problem, but an opportunity, there is a Chinese proverb: "When the winds of change blow, some people build walls and others build windmills." (from the video: Steal this video).

When the VCR, the video tapes, were created in the early 1980s, and the video recorder, the ability to record programs, and the opportunity to spread for VCR rental companies around the world (benefiting from the first sale theory, exhaustion of copyright), immediately there was a movement of the culture industry, especially the American film industry, saying that the invention and sale of video recording would be a catastrophe and that even television would be destroyed and would disappear from Earth. And the prophecy did not materialize. What we saw was only the coexistence of new media, the fast growth of all of them and even the correlation between the related diffusion and creation of intellectual works.

The U.S. copyright law establishes that authors have the exclusive right to "print, reprint, edit, and sell" (LITMAN, 2001, p.23). Over time, however, this right has become obsolete, given the new forms of exploitation of works, which were made possible by digital media. And especially publishers now often see the Internet, from one side, as a "huge machine to make copies", which facilitates copyright infringement. But the Internet is also seen as the one that will replace newspapers, the television, and music players. Therefore, these owners fight to have some authority over the Internet and copyright to compensate for what they consider to be a loss. [14]

But what is the origin of piracy that concerns us? In the past, piracy was considered the reproduction of a large number of unauthorized copies. The definition was expanded to an extent that today any copy, including only one copy, especially in China and some countries in Latin America or Africa, represents an act of "piracy". What is the reason of this misinterpretation about piracy? Why was the concept of piracy extended to any copy? Worse, there was a time when piracy was a "good deal". Pirates could steal galleons and be treated as heroes. It can be argued (DRAHOS, 2002, p. 22) that in English lands, as well as in the USA, large-scale piracy played a fundamental role in their economies. However, in the 19th century, when England complained of piracy regarding the works of Dickens, then the initial virtues of piracy were completely forgotten. [15]

This institutionalized piracy was interesting for those who had the power. This means that initially an act of piracy was completely approved because it allowed people to have new goods they wanted. The goods were inaccessible without piracy. Now we see exactly the opposite: those who used to make copies in the past now have the power to prevent copies from being made, the power of intellectual property. Thus, today publishers are being called the real pirates because they do not accept to negotiate the charge, they do not want to agree on a fair price. They are the almighty owners of copyright. Simply changing the order of the factors could not change the sum. What we can see here is that in this case the reverse order of factors results in a different amount: the pirates of the past (which became big players, growing under the protection of piracy, or the freedom of free copy and distribution), are the greatest opponents of free distribution of contents these days (and such distribution is now called "piracy"). Therefore, Lessig (2004) stated that the copyright history, and the history of piracy growth, is very contradictory. [16]

It is possible to ask if just because one download of a copyrighted work carries the danger of "making possible" millions of unauthorized copies it is enough to blame the one who made only one download. Just because this action is potentially dangerous, it does not mean this person is guilty. Many actions can be considered to be dangerous and not really deserve punishment just because they are "potentially dangerous." Just because something can cause damage, it should not be considered piracy, let alone a crime of piracy.

There is a huge trick here. The action of some individuals who make a download is dangerous to whom? Especially to big companies that own the copyright. The action of this individuals is, on the other hand, healthy from the viewpoint of a society that wants critical, well-informed, updated, educated citizens, who can participate in a discussion, elaborate, and create new protected works that could be made available freely and cause inconvenience to those who want to profit from the exclusive ownership of intellectual property.

However, here is the great dilemma: people obey laws believing in an old principle of common sense. The law must have some sense. And now, copyright laws make no sense for youths. For this reason, copyright laws have been object of jokes, especially in Brazil, such as "Nerdson." [17] Individuals do not have the right to share MP3 files. There has been condemnation of individuals. For example, the U.S. file sharers who got notified they were being sued for downloading the Expendables in what has become the single largest illegal-Bit Torrent downloading case in U.S. history. Litigation can be very lucrative, as the settlements were around $3.000 per infringement. [18]

3. Reviewing the Current Paradigm of Copyright

Historically the core of exclusive rights was established and developed to provide and enlarge copyright protection as much as possible. Germany effectively showed it through a draft amendment to the Copyright Law (proposed by newspaper publishers) "to treat even the mere 'representation' of protected subject matter on a computer screen as a reproduction". Dreier (2010) [19] points out that "exclusive rights appear as the rule, whereas limitations apparently are nothing more than mere exceptions." This has led the courts in some member states - notably Germany - to follow the principle that in case of doubt, limitations should be narrowly interpreted, but limitations and exceptions, says the author, "are more than just the unavoidable tribute to 'the public', that means limitations fulfill several tasks". First, they define the exact contours of exclusivity; second, they help to find balance between different interests; and third, copyright limitations do not only benefit end users, but help to define the delicate relationship between authors, right holders, and end users.

When the U.S. Constitution was written in 1787, the idea of copyright and patent was relatively new, with few products to apply and also with short terms. However, over 200 years later, it could be "asked if the legal grants of monopoly serve to promote the progress of science and the useful arts"? According to Boldrin and Levine (2008), based on common sense, legal grants of monopoly should do that because otherwise how could musicians make a living if everyone else can copy and give it away for free, and why large corporations would pay small inventors for their inventions when they can have the inventions for free? For these authors, the last 220 years show us that it is not a real fact that intellectual monopoly leads to more creativity and innovation; therefore, there is "no evidence that intellectual monopoly achieves the desired purpose of increasing innovation and creation". Their understanding is that actually there is no need for society to balance the benefits and costs, thus they concluded that "intellectual property is an unnecessary evil". [20] Or, as asked by Thomas Hoeren (2006), even if there is no such thing as an "access right": "is there no need to discuss a fundamental change in the copyright structure?" In fact, as pointed out by the author, perhaps the whole discussion on "access rights" "is only a symbol or an inherent feeling that copyright law is becoming ill." [21]

Actually, the copyright system, regarding the limitations or exceptions, does not balance the interests of the information society, as can be seen in article 5 of the EU Information Society Directive 2001/29/EC and the TRIPS (article 13 and 5 (5)). The TRIPS agreement, in fact, "is not in the best social welfare interest of the poor countries" (RICHARDS, 2004). It seams a mere imposition on them by the rich countries and represents the exercise of political and economic power. [22]

Countries adopt legal standards for intellectual property not just for the sake of economic policy, but also as a strategy of rational policy. Economists and lawyers have advised the adoption of IP rules in order to stimulate economic growth, but the governments of some states have realized that a weaker system could provide more benefits (RICHARDS, 2004). After all, we can acquire technology without paying royalties. The real and unique reason that such rules are adopted, therefore, is the external pressure from countries and industries that have the technology and want to be paid for it. Because countries do not have the same level of economic development, the interests are obviously different. [23]

In this case, it makes no sense that developing countries have ratified the TRIPS Agreement, or at least, there is no reason for exclusively economic or cultural policy. On the contrary, Drahos and Braithwaite (2002) suggest that the reason why countries have ratified the TRIPS Agreement is also related to the failure of the democratic system itself, or the democratic process in the national and international sense, because a handful of U.S. companies have established players in the "game" knowledge, and came to dominate the trade agenda. Hence, in partnership with Japanese and European multinational companies, these U.S. companies established the principles governing the intellectual property system of the TRIPS, and the resistance of small companies was simply overwhelmed by economic power. [24]

There is the argument that copyright exists to encourage more creation. Another argument is that the limits to copyright exist only for those uses that have no economic value. But copyright has been used as a powerful tool for copyright owners to exploit the maximum potential economic impact of intellectual works. In addition, even uses that long ago were regarded as normal and free are going to become illegal. If this trend continues, as Litman (2001) says, it is possible that we will see a violent collision between freedom rights and copyright in a not so far future. [25]

Also according to this author, until the 1970s, copyright law was seen as a right that should balance the interests of authors and the public (and in general the authors of the papers were not the holders of rights). The challenge was to find a balance where each one could receive as much as needed. But in economic terms, neither the author nor the public was included here. That is why we must ask ourselves if such a system achieves the right balance. [26]

To avoid such a discussion, another view of copyright, stating a new nature of copyright, allowing owners to achieve more and more benefits has emerged in the early 1970s. Thus, the idea of ​​a "balance of interests" was gradually changed to a model taken from the economic analysis of law, which characterizes copyright as an "incentive system". It is a model that was widespread due to its simplicity: the more protection, the more creation, where less protection, less creation. To justify the fair use, it is necessary to justify the reason that authors and owners need an incentive to create. It means that the issue of public interest is completely out of the discussion. According to this theory, the public interest is linked to this incentive to get more and more creative work. If such reasoning is correct, sooner or later, ironically we will have to face the question: why don't we protect more and all to encourage more creation? Why is there a limit to encouragement? In fact, the healthy balance between the public and the author disappeared.

What is important to observe is that the old system of bargain, where public interests and authors' interests were supposed to be in balance, was replaced with a control system (LITMAN, 2001). As a consequence, now users in the digital copyright world, who pay for a legitimate copy, can be accused of committing mass piracy. [27]

As a result of large profit (DRAHOS, 2002), big culture industries became more visible to the governments because they represent millions of jobs worldwide. Anyway, the lobby related to the rights of property should be established under conditions of democratic bargaining, which is related to the property rules, since ownership gives authority over very important resources. If it does not happen, the consequences will affect the political and economic freedom of individuals. [28]

Anyway, when one says, by means of the Constitution's speech or through the International Conventions, that copyright is meant to "promote the progress of science and useful arts", actually we need to face a different question: the progress of science and arts of whom and for whom? After all, there is no progress without access for individuals; therefore, art and science will provide progress only within few groups, forming a vicious circle. Where few people read, even less produce intellectual works, and these are who dominate knowledge and manipulate the laws, reducing the knowledge and the results of intellectual works in consumer goods. And in this case, the "good" is reduced to the opposite of nature itself, because it is an intellectual work, and as an "exclusive good", which excludes people, it allows only those who can afford it.

Beginning from a historical point of view, Hoeren (2006) discusses if "the idealistic model of creativity is still a valid vision for post-modern society." In fact, the European copyright concepts provide a "good starting point for a discussion on access rights," as pointed out by the author. Until the Renaissance everybody could use each book for whatever purpose. Thus, at the beginning, there was the main principle of freedom of information. Over time, privileges were granted by sovereigns to printers, but the privileges to printers were linked to public interests. The author protections came only as a product of the French theory of Enlightenment (Aufklärung) and the German philosophy of idealism. The political discussion about changes in the copyright system needs to take into account the historical changes from the "individual creativity" to a "team-creativity", especially with the raise of digital technologies. [29] This question is linked to a hard postmodern issue: the meaning of authorship: "Artistic merit has never been a prerequisite to copyright (at least not in theory), and authors are not necessarily less creative for being multiple," as pointed out by Ginsburg (2003). [30]

Now it is simple: maybe we could talk about the failure of democracy itself: the control system brings large profit, this brings visibility to big culture companies that will represent millions of jobs worldwide. Thus, the consequences will be reflected in the political and economic freedom of individuals. And then came what we can call "copyright feudalism", paraphrasing Peter Drahos (2002, p. 12), who talks about "information feudalism" and asks who owns knowledge. In fact, when the information is scarce, it is also relatively easy to control.

To resume, we need go back to the lights of the 18th century. Those values were valuable for 250 years. Now, the economy is no longer a human activity, but the translation of a reality and application of natural laws. If we deny the human being who is the subject of history, we are denying the values ​​of the lights, we need to rebuild such values. Is collaboration instead of competition possible? As the digital age seems to show us: yes, it is. From the point of view of right to access information and culture, from the point of view of public interests, we could agree with James Boyle (2008) that "the problem of copying in fact became a virtue". [31]

4. The Era of "Copyright Feudalism"

Copyright is a system of control, and as pointed out by Peter Drahos (2002, p. 12), there is not only a kind of "information feudalism", but there is also a kind of "content feudalism." The "Feudal Lord" today can be a big software industry, or a big culture company. Anyway, copyright is a control system that does not control only "intellectual works", because even the concept of intellectual works has been undermined by the system. This system wants to control everything that has some value and is also related to knowledge and information. It is the copyright digital feudalism.

Control over access now has the power to redefine completely the post-modern copyright. There is no reason to continue to call this system of law "copyright", but "right to control the access to intellectual property," or simply "ownership control system". At least it seems a more representative name for the copyright we have today.

And this system promises to bring even more profits: to date, copyright was controlled in terms of multiplication and distribution of works, but never in terms of consumption. The possibility to purchase a copy and read it as many times as desired may disappear. The action of buying a book and the possibility of reading it as many times as you want may soon come to an end. What the Internet can do, and which copyright laws can change, is also improve the ownership powers to regulate the use. Then each time you access or want to read a book, you will have to pay for it again. This is the age of digital copyright.

It is a system that not only seeks to regulate the use, but also how the works are accessed. In fact, we really think we have access. Maybe we have. But do we really? Actually, consumers are producers. People do not need to rely only on the culture industry to consume the culture. Creating and sharing is part of the nature of human being. But the culture industry wants to produce mass culture with exclusivity. And the Internet has changed this monopolistic model. The greatest fear of cultural industry is just this: that people realize that they can create and produce by themselves, especially because it is also part of the nature of human being to communicate, share, and copy. And this is not piracy. Piracy is to make money through the copy of a protected intellectual work.

5. The Promises of the "Copyright Feudalism"

Digital copyright, which can be called post-modern copyright, is not worried about issues such as the right of access to information and culture. It was never concerned about the fundamental freedoms, and now, through copyright, it is possible to say that, reinforcing more and more the copyright laws, every day we get closer to imposing limits to freedom of expression. This means, as incredible as it sounds, that the digital era of copyright can even become an important instrument for non-democratic countries. We can imagine that with the improvement of the copyright laws, or with a broad interpretation of its protection, a Government could even impose violence and revoke the freedom of expression. Of course this is an irony. After all, copyright is now related not only to companies and organizations, but also to individuals.

This reminds us of the famous Betamax case, Sony vs. Universal, [32] which if had gone ahead, would directly affect consumers who use equipment that make reproduction possible (LESSIG, 2004). Thus the dispute was among companies and should continue to be restricted to them. When publishers, in Brazil, sue universities, they should instead file a lawsuit against a company, like Xerox, and Xerox should pay for any copy. And, in Brazil, people who make copies for students can also be put in jail according to recent news (UERJ case). [33]

Moreover, it is only through copyright laws that it is possible to check the control of access to knowledge. The culture industry charges for the access too. The culture industry uses other refined tools, such as technological devices implemented by Law, criminalizing who attempts to overcome the protection of what is originally blocked. There are also contracts of adhesion, where users can only access copyrighted material when they sign terms that restrict the use and access.

When I started this study, I thought that culture companies cry like babies against the private copy because they really do not want to lose money. The numbers they present are really out of expression. But just now I can face a problem that is really depressing, shocking, and disgusting: they also want to control the culture one can access. In other words, they really do not want to see people creating. They really think that it is possible to divide the society between who provides culture, the producers, and people who buys culture, the consumers. But since the emergence of the internet, "consumers" became creators. And the worst to the culture companies: consumers became producers. People now can avoid the control of mass media and mass culture production. Now people have the unique opportunity to be really free from what we have been consuming since the last "Enlightenment". I want to say it and I am very happy to say that what I see now is a new era of Enlightenment.

But this era is at risk. In fact, we never faced a so gigantic attempt to control the cultural production before. The ACTA is the best example of that. And the worst aspect is that those basic rights that were very usual, like reading, listening, and writing, should soon be subject of explicit law, and we run the risk of losing them. It sounds ridiculous, but we can see some examples as pointed out by Litman (2001): [34]

1. The right to read, until recently, was unquestionable, but...

...when temporary copies are considered illegal, then each time that a work is downloaded to the computer memory, only in order to read it, one can be making an illegal copy. And, as explained in the White Paper (The Reporter of the Working Group on Intellectual Property Rights), rules should be applied to private individuals as well as to commercial actors. The recent disputes involving cultural industry also shows this intention. We must consider, however, that temporary copies are often an unavoidable incident of reading and then it should be a privilege to make copies with this intent. [35]

2. The right to quote has always existed, as a question of public order and scientific research, but...

...together with the Digital media came the new forms of citation, the way a researcher indicates the sources used to write, such as the "Hyperlink". The fear that hypertext links can make it possible to find an unauthorized copy has inspired actions against the use of links, so that their use could automatically be called piracy. [36]

3. Moreover, before the U.S. Digital Millennium Copyright Act, the public had, and should have, as reported by Litman, an affirmative right to access, extract, use, and reuse ideas, facts, information, and other materials already on public domain, but...

... with the digital age that affirmative right should include a privilege to break any technological control (DRM), with the privilege to reproduce, adapt, transmit, and represent the protected works in order to gain access to unprotected elements. The new prohibitions prevent this. Right holders are able to complain in these cases as well.

4. Furthermore, the plasticity of digital media has also introduced other obstacles to public access, because as the works can be rewritten easily, changed, replaced, there are no longer guarantees that the version of the work that is being distributed is the original.

… Copyright law, seen as a control system, gives more power to those who hold the ownership title, i.e., for agents (intermediaries) in general, more than for authors. Agents have greater control over the distribution and the power to prevent distortions. This example shows, however, that it is important to safeguard better access than the copyright. It can be done simply creating a mandatory link to the original work, without preventing that other creative works are done considering the original one.

Actually, we are witnessing a real battle of the companies to keep their gains and economic advantages. They do that through legislation designed to limit communications and restrict the use and access to cultural goods. The related Bills SOPA, [37] ACTA, [38] and PIPA [39] were created with that purpose.

On the one side, we can read Lawrence Lessig saying: "I admit, today this hope seems like a pretty far-fetched dream. But I can assure you that a decade ago, the idea that millions would have rallied to stop Hollywood from pushing an 'anti-piracy' bill through Congress was also little more than a dream. A dream that hundreds of activists made real now." [40]

On the other side, we can read Danny Goldberg, President of Gold Village Entertainment, telling us to kill the Internet - and Other Anti-SOPA Myths: "But before we celebrate this 'populist' victory, it's worth remembering that the defeat of SOPA and PIPA was also a victory for the enormously powerful tech industry, which almost always beats the far smaller creative businesses in legislative disputes. (Google alone generated more than $37 billion in 2011, more than double the revenue of all record companies, major and independent combined.). (…) There is a profound moral difference between loaning a friend a book and posting, without permission, the content of bestsellers for commercial gain - and people and legislators ought to take that distinction into account." [41]

It seems healthy to conclude with the lessons of Yochay Benkler [42] regarding SOPA/PIPA/Megaupload: "The Networked Public Sphere comes to Washington (1); Hollywood and the recording industry don't like traditional copyright law, balanced by courts under due process constraints (2); as the networked environment resists control, more of the flow of networked economy has to be sucked in to the enforcement vortex (3); freedom of speech is bound with freedom in the network (4) (…); Criminalization has become a Golem/Frankenstein (5) (…); the Supreme Court's alteration of the Sony standard in Grokster create genuine risks to technological innovation (6). What we testify is the war between the moral authority of the networked citizenry vs. the power of money (7)".

6. Challenges of Publishers and Libraries in the Digital Age

It is remarkable to work today with readers of the digital age; readers belonging to the "post-human" age (which means that people are in one way or another, connected, and do not feel part of humanity if are not, somehow, able to communicate virtually). The age of those who have specific needs and a specific way to seek for knowledge. This "post-modern" reader has its own inherent facilities and difficulties. A "post-human" characterized by the need to support digital media to live. This "Google" generation has increasingly proved to be the kind of "web literate" generation, according to Dame Brindley (2010). And, at the same time that young people show much familiarity with computers, they also remain dependent on search tools, interested only in "taking a look" instead of reading, demonstrating difficulties to formulate a critical point of view, to evaluate and access what can actually be really better in the web world. [43] Google ended up the 20th Century being the "oracle" of the digital age, and already dominates the attitude of young people in search of any information or even knowledge.

In addition, the Digital Era brought new intermediaries in the business scene. These intermediaries brought new practices for the culture industry (SIRINELLI, 2010). They want to be considered "technical" service provides, because the companies of search engines and Internet service providers want to escape from any responsibility related to the misuse of the network through their services, and they require new legal texts to guarantee that. [44]

Therefore, it is possible to identify some challenges for digital libraries, publishers, and digital bookstores: the services and products they offer must be adapted to this new generation. Libraries, for example, could become real "museum of books."

Conversely, it is possible to envision another prophecy: that, in the future, libraries will be even more important than they are today (DARNTON, 2010). It is really unbelievable that Google could make available all books virtually, because some books will escape from Google. There is only one hard copy of some of them, and sometimes Google's digitalization contains failures. In addition, many books have new editions; thus, how can the reader be sure that Google has made the latest edition available? [45]

Another challenge will be dealing with copyright laws. Publishers, bookstores, and libraries could scan the contents of the so-called "orphan works", but there is no legislation that authorizes it in Brazil. In addition, legislation is also very restrictive in relation to formats, and when a scan is allowed, for example (which is still prohibited in Brazil), there is the problem that this may be soon overtaken by a more appropriate technological development. And, according to the Law, we need again a special authorization to copy work in a new format. Therefore, there is still the problem of technological tools that block access to the copy in general (DRM), and we are not allowed to break the DRM because, under the Brazilian law, it is an explicit crime (Penal Code, art. 184-186). Finally, scanning, according to the law, is one thing, publishing and distributing are other quite different things. This is a problem that is also far from being solved, because there is no possibility of exhaustion of rights in Brazil.

It is a fact, today, that many libraries from universities ended up absorbing the publishers of their academic institutions. It is possible that, if the demand for on-demand printing and e-books is confirmed, so that immediate needs are fulfilled, there will be enough space for research libraries that can maintain what has always been their greatest talent, according to Darnton (2010): to take care of special collections, invaluable manuscripts, which may include future collections not yet imaginable. [46]

7. Business Is Business...

Much is said today about the end of publishers. People say that after the emergence of the Internet and digital media, musicians and writers no longer need publishers. Is this true? Is it true that the Internet can even eliminate the "intermediate", since so many musicians do not want to feel exploited by the music industry? Is the work of intermediaries threatened by the internet?

An editor makes profit when acquiring the author's copyright through an exclusive edition of a work. However, an editor also wins when there is no more copyright of a work and he wants to publish it, because it is in the public domain. Excessive copyright protection, as we usually see (the continuous increase of the period of protections is a clear example) is also a double-edged sword for the publishing business. Many publishers have huge profits through the innovation of a format when promoting a new edition. They also take advantage from the fact that many books have fallen into the public domain. These editions are then cheaper, and the publishers bet on the profit based on the highest offer. Therefore, there are several ways to make money with a publication, even without copyright. It is important to point out that it is possible to establish a healthy relationship between copyright, the Internet, and all access movements, such as Open Access and Free Software, which are not using copyright as a tool for a special financial gain, or profit, since the aim of copyright is the cultural development, the incentive to creation, and not to become an obstacle to it. Hence, James Boyle (2008) [47] states that if we really will have a collapse of the market in case all things are cheap and free for copy, to avoid this collapse, or in order to solve the corporate breakdown, we have to call the "super-hero" intellectual property, of course, an artificial creation of a new generation of owners, who want to restrict access, and one of the most intelligent ways to do that is extending the protection deadline in order to delay the copyright expiration date. [48]

There are other legal mechanisms to obtain profits. These tools exist mainly for companies and publishers to ensure fair competition. One tool is the law of unfair competition, which provides standards that prohibit abuse of clients, use of intellectual property, etc. These actions are, however, focused on competitors, instead of individuals. What we see happening is a distortion of competition, where every player, every teenager who downloads a song or movie, is seen as a competitor against the companies that own the copyright. But the struggle of the business should be restricted to the business world, or against those who sell copies of protected works that generate revenue based on property and labor of others. Preventing individuals from accessing works and knowledge is a way to weaken the very nature of creativity and knowledge, and it has to be seen as an act of restriction of access to basic goods.

Litman (2001) suggests that even with no legal incentive, there is a great amount of incentives in the Internet. Such incentives have been sufficient and responsible for a large increase in the number of creative works, many of outstanding quality, which would certainly be bought in shops due to pecuniary compensation if they were available in stores. This suggests that no additional protection or encouragement of greater control over their works are necessary since there are many interesting things available, but they will not reach us by means of the institutions that have provided the traditional media content. There are new players who are now entering the game, and they are exploring the possibilities of new digital era. According to the author, although this fact is of crucial importance for culture companies, in order to increase the costs of an intellectual work, which is non-rival and non-exclusive, they try to increase the profit by reinforcing the access barriers. [49]

For Braithwaite and Drahos (2002), intellectual property does little in terms of encouraging creative and innovative works, but has been accused of blocking innovation, because today many companies survive through the exclusive content, or indirect use of it. Over time, big business corporations entered the scene to buy and sell intellectual property, or to be simple intermediaries. [50]

Therefore, the rules of intellectual property are not serving as an incentive to creation, instead they ensure intermediation services. In this sense, public goods are defined according to two main characteristics: they are "non-rival" and "non-exclusive." Knowledge is an example of the characteristic of being "non-rival" in consumption. My use of knowledge or an intellectual work does not prevent your use. Everyone is entitled to it. However, despite the fact that knowledge is non-rival, it does not mean it cannot be excluding, and the project of "informational feudalism" proves the power and strength of the culture companies. About the process called "informational feudalism", Drahos and Braithwaite (2002) describe the situation in which laws make knowledge a private good, excluding those who do not pay for it. And the destiny of this system that expands its protection including business methods will lead to an era of post-competitiveness. [51]

Access controls and copyright law are enabling the cultural industry to control also the audience's eyes and ears. Or (Litman, 2001), because they realized that it does not bring the results they want, they may be considering that it is time to return to the bargaining model, where everyone gains a little. And thus they are voluntarily abandoning the system of total control. [52]

8. The non-profit users: friends are friends, not business

Non-profit users are non-commercial users. They are people who just want to better understand the world they belong to. For some users of protected contents it is just impossible to pay for everything that is important to warrant their inclusion in the digital age. To read a text with a scientific purpose or simply get connected into a digital world cannot be seen as a copyright infringement. Non-profit users are friends of culture. Non-profit users are the persons who look for content as a resource to better understand the world they live in. Non-profit users do not want to make money from any protected work, they just want to access the content, which means today, as pointed by Kuhlen (2010), the "water of the mind".

A website company which wants to establish business with a library has to pay for access and to allow access. As Google has already paid for the music it plays on YouTube, for example, to the Brazilian collecting agency ECAD. [53] It would be possible to imagine a collecting agency for writers with the same objective, a body that could also record data to bring to an end the problem of orphan works. Based on technology and transparency, these agencies could do a good work.

In fact, as pointed out by Peifer (2010), [54] "the full potential of network capacities can only be activated if texts, data, pictures and audiovisual or sound files are combined".

It is possible to analyze the illegal acts from the viewpoint of who performs the upload and who effectively makes the download. It is easier to consider punishable who makes the download possible, which at first was just taken out to establish the liability of those involved in the Pirate Bay. But criminalizing the existence of a program that allows file sharing is excessive control, because the program itself is not immoral or illegal, since its use can serve legitimate purposes, as the exchange of copyright-free works, for example. In principle, any advertising of the work or public display of the work can generate a duty to indemnify, but when the download does not have economic purposes, but cultural purposes instead, it should not be considered "theft." Finally, these cases should be analyzed considering the purchaser from the point of view of a right to information and culture, not only from the standpoint of the right to control who owns a copyright.

In reality, all this shows the necessity to effectively address the issues. At the same time that many legal scholars have a deep knowledge of the issues and face the most specific problems, there are many people that do not even realize that the problem exists. Therefore, many Law Schools do not teach intellectual property, which is very incipient in Brazil, as well as in other developing countries. And when the Law Schools teach this subject, students often do not understand the importance of studying it. This reveals that teaching intellectual property must be linked to teaching human rights and, more specifically, connected to the fundamental rights of access to culture, education, and information. But it seems that it's time also to face the questions and provide some answers. In this sense, it seems evident that a new structure of copyright is urgent. A structure such as the one Brindley Dame (2010) [55] proposed, a structure including a differentiation between commercial and noncommercial. A structure that differentiates the use with lucrative purposes from the use for purposes of research, education, and teaching.

Moreover, as Darnton (2010) says, "You can imagine an even happier ending: a law that makes all Google data available to the public" - of course, first to the American public. And that's why copyright laws need to be rewritten, then the holders would be compensated and Google will be compensated for his investment". The remaining question is "who" will pay for the compensation. [56]

It seems that a step further could be done. It is possible to think of a world library, with courage to give to many people as possible the access to provide the intellectual dialogue necessary for the execution of any democratic regime. We should be able to go a step further. Also, the statement: "there is no difference between stealing a CD from a store and downloading music from the internet" (SIRINELLI, 2010) is unacceptable. Demanding payment for something that is freely accessible increases the problem, even if it is economically justified. [57] Since a long time ago, intellectual works have been provided free of charge for the final user, who never was seen as a mere consumer. Two examples of that are the radio and television. Nobody spoke about copyright in the beginning and that was not an obstacle for these industries to build business empires.

Therefore, we can observe that "the relationships between goods and services are changing, as well as the relationships between consumers and sellers: an increasing number of businesses are giving away their products for free in the hope to enter into long-term service relationships with clients" (RIFKIN, 2000). And, at the same level, consumers are beginning to make the shift from ownership to access. [58]

The question whether they need to pay for access remains, as the access can be seen as 'the water of the mind' (KUHLEN, 2010), as the immaterial good has the same ethical foundation. [59] Access has to be considered something indispensable for the development of humans. Thus, it is necessary to implement an affirmative action to institutionalize broad access to knowledge to avoid a kind of slavery of post-modernity. Copyright cannot play any positive action here, otherwise the post-modern slavery can be institutionalized through copyright.

9. Conclusion

Returning to the principles of balance between authorship and public interest, which copyright should reflect, it has to be pointed out also that copyright must be submitted to information law. Therefore, apart from the focus on intellectual work, the right should also favor the public good regarding the importance of its dissemination in society. A good solution for this conflict could come from the unfair competition rules. After all, if information, databases, software, etc. can be protected in the same way as intellectual work is protected, then they should be protected in a commercial sense. Protection should be restricted to the economic issue, with sanctions between companies, allowing the public to have private access with the only intent of accessing culture and information. In other words: private access cannot be compared to commercial access. It is a non-profit access. Obviously, other considerations are important, especially details about moral prerogatives, in the sense that authors can complain about plagiarism and violation of integrity, first publishing, etc. But the general rule regarding the patrimonial content of copyright should be confined against commercial exploitation done by companies. [60]

There is a huge difference between granting permission and blocking access to private commercial companies and public non-profit institutions (SUTHERSANEN, 2010). [61] Actually, even the copyright law is completely anti-competition as the intent is to give a kind of eternal power to an intellectual property ownership - a kind of digital "feudal lord." Therefore, there is also a big difference between the allowances to copies of public libraries in comparison to private companies.

If we rethink copyright, considering what it should be, as a balance and fundamentally an instrument of cultural progress - non-exclusive, so we understand that the private use of a work is simply what they say, a private use, not for profit. Even with the digitalization with conservative purposes, it is important to remember that the private use does not cease to be private because someone accessed a scanned copy with this purpose.

What is certain is that countries that allow access to repositories, exclusively for its citizens, as does the ET Archives Bibliothèque Nationale du Québec, will have obviously people much better prepared to face any dialogue with their peers. And those who do not have access will probably not understand as well what is being discussed, even though they are speaking the same mother language. This is how the current copyright laws can be, much more than a creator's rights protection, an effective instrument of social exclusion, including the democratic process itself. What is the benefit for democracy if people cannot understand the rules of the game in order to choose the paths they are willing to take?

It is really important to rethink the copyright system and intellectual property system from the public point of view of right to access information and culture. We could summarize this saying that the business can survive selling intellectual property of works through the unfair competition rules. And in this case, true creators of original works will again be of value. Now they do not seem to have any value, since the commercial world determines what should and what should not have value regarding intellectual works. What the industry wants is to sell everything.

Of course it is not easy, but it is necessary to seek a balance between public interest and private interest, otherwise, effectively, there will not be more space in the future for copyright. And why people should make profit from intellectual works? They can make profit from intellectual works, but there are limits. Even human rights are not absolute. In this sense, everything will certainly be back on the route. Free thinking, free access, more creativity. Not the opposite, as a wrong idea that even WIPO likes to sell (and with strong marketing). If these works are so essential to our life, we need to think about the fundamental rights and the basis of human rights. This is what the access movements can do: undermine or weaken the power of copyright and intellectual property rights, reducing the constant growing power of these rules. And they do so in a silent way, stating categorically that they do not intend to destroy the copyright laws.




[1] Universidade do Vale do Rio dos Sinos, Unisinos, Brazil.

[2] This article is a result of post-doctorate research done at Westphalische Münster Universität. I am very grateful to Prof. Thomas Hoeren, who kindly received me in Münster, at the ITM, Institut für Informations-, Telekommunikations- und Medienrecht http://www.uni-muenster.de/Jura.itm/hoeren/. His ideas as well as the great stimulus I received were also very important for the result of this research. I am also grateful to Arne Neubauer and Richard Gulbin, who helped better focus on my ideas. I am also grateful to the whole team working with Prof. Thomas Hoeren, many of them helped me with comments, references, and examples.

[3] BRUGUIÈRE, Jean-Michel. Les donées publiques et le droit. 2002, Paris, Litec. P. 52-53. (total: 208). As pointed out by Jean-Michel Bruguière (2002), despite his position, it looks better understand nowadays that all the dimensions of the rights and especially human rights work together. Of course a person wants not only the access, but the access to something, and "something" here is the access to an intellectual work protected by copyright.

[4] SUBER, Peter. A Very Brief Introduction to Open Access: http://www.earlham.edu/~peters/fos/brief.htm, accessed in 16/07/2012.

[5] HOEREN, Thomas. Access Right as a postmodern Symbol of Copyright deconstruction? Associação Portuguesa do Direito Intelectual. Direito da Sociedade da Informação. Separata vol. VII, Coimbra Editora, 2006.

[6] "The access right is, I would contend, a necessary and integral component of copyright law, despite its formal placement in a separate section of Title 17" (GINSBURG, Jane C. From having copies to experiencing Works: The Development of an Access Right in U.S. Copyright Law, in Columbia Law School, Public Law & Legal Theory Working Paper Group, Paper number 8, New York, 2000. To be downloaded via: http//papers.ssrn.com/paper.taf?abstract_id=222493, p. 16-17).

[7] Taking into account the WCT and WPPT, Thomas Hoeren concluded that "there is no Access right insofar as the rights holder cannot solely authorize or restrict Access; the Access of a work depends on the rights holder's permission or statutory authorization" (p. 10). In Europe the first Software Production Directive has no reference to an "access", and the later Conditional Access Directive (98/84/EC of Eu Parliament of 20/11/1998) had the aim to protect the conditional access systems, only applied in a business-to-business environment or to unfair competition (p. 11). And the latest Info Soc Directive (2001/19/EG of EU Parliament and Council of 22/05/2001) also has nothing to do with copyright law; it is only a protection against tools of commercial actions, not against private acts (its "access" is related only to the effectiveness of a technological measure). On a national level, there is no access right either, says the author (p. 12), and the ALAI reports demonstrate the same in Europe (p. 13), as the "traditional copyright system does not know an access right apart from the existing rights of reproduction, distribution, public performance or communication to the public" (HOEREN, Thomas. Access Right as a postmodern Symbol of Copyright deconstruction? Associação Portuguesa do Direito Intelectual. Direito da Sociedade da Informação. Separata vol. VII, Coimbra Editora, 2006, p. 10-13).

[8] ASCENSÃO, José de Oliveira. Questões críticas do direito da internet, 2010. In this sense, Article 11 of the WIPO Treaty of 1996 on Copyright and Article 18 of the WIPO Performances and Phonograms Treaty stipulates "obligations relating to technological devices," and with that purpose, a legal protection to get an adequate neutralization of technological devices should be established. Additionally, the EU Directive n. 2001/29/EC, of May 22, extended such protection to sui generis database, "to avert the danger of illicit activities to develop neutralizing these devices".

[9] "The technological strategy has some major advantages: The answer to the machine is now in the machine. Lawyers, statutes, courts are no longer needed; technicians are replacing lawyers and programming codes are taking the role of codifications. Technology can be used worldwide - without the limitations of nationally based laws. It is cheap and directly effective "(HOEREN, Thomas. Access Right as a postmodern Symbol of Copyright deconstruction? Associação Portuguesa do Direito Intelectual. Direito da Sociedade da Informação. Separata do vol. VII, Coimbra Editora, 2006, p. 16 and 18).

[10] According to the Court: "A plaintiff alleging a violation of § 1201(a)(2) must prove: (1) ownership of a valid copyright on a work, (2) effectively controlled by a technological measure, which has been circumvented, (3) that third parties can now access (4) without authorization, in a manner that (5) infringes or facilitates infringing a right protected by the Copyright Act, because of a product that (6) the defendant either (i) designed or produced primarily for circumvention; (ii) made available despite only limited commercial significance other than circumvention; or (iii) marketed for use in circumvention of the controlling technological measure. A plaintiff incapable of establishing any one of elements (1) through (5) will have failed to prove a prima facie case. A plaintiff capable of proving elements (1) through (5) need prove only one of (6) (i), (ii), or (iii) to shift the burden back to the defendant." Regarding this, the conclusion was that: "Chamberlain, however, has failed to show not only the requisite lack of authorization, but also the necessary fifth element of its claim, the critical nexus between access and protection." (...) "We therefore affirm the District Court's summary judgment in favour of Skylink. (Chamberlain v Skylink, ( http://bulk.resource.org/courts.gov/c/F3/381/381.F3d.1178.04-1118.html ). But in the MDY Industries LLC v. Blizzard Entertainment Inc., No. 09-15932 (9th Cir. Dec. 14, 2010), the Ninth Circuit addressed a dispute between the creator of the online game "World of Warcraft" and a manufacturer of a software program (called a "bot") that could to help the users progress through the game's levels. While the case contained other rulings as well, the court's most significant holding concerns its interpretation of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1201 et seq. The appeals court concluded that a copyright owner's rights in Section 1201(a) are broader than a copyright owner's rights under Section 1201(b) because "preventing 'access' to a protected work in itself has not been a right of a copyright owner arising from the Copyright Act." The court said, "we read this term as extending a new form of protection, i.e., the right to prevent circumvention of access controls, broadly to … copyrighted works." On this way, the court did not accept the argument that Section 1201(a) should be more narrowly construed, and should only be applied where there is a "nexus" between the access sought to be prevented and a copyright owner's rights under the Copyright Act (http://courtlistener.com/ca9/VPD/mdy-industries-llc-v-blizzard-entertainment-inc/).

[11] HOEREN, Thomas. Access Right as a postmodern Symbol of Copyright deconstruction? Associação Portuguesa do Direito Intelectual. Direito da Sociedade da Informação. Separata do vol. VII, Coimbra Editora, 2006. p. 24-25 and 26.

[12] "It's not just a question of who gains access but rather what types of experiences and worlds of engagement are worth seeking and having access to. The answer to that question will determine the nature of the society we will create for ourselves in the twenty-first century." (RIFKIN; Jeremy. The age of Access. New York, Tarcher, 2000. p. 266).

[13] JOHNS, Adrian. Piracy: the intellectual property wars from Gutenberg to Gates. 2009. 626p.

[14] "...each technological inspired a dispute about whether it entitled copyright owners to expanded rights over their works." (LITMAN, Jessica. Digital copyright. Prometheus Books, New York, 2001. p. 23).

[15] DRAHOS, Peter. Information feudalism: Who owns the knowledge economy? Earthscan Publication Ltd, UK, 2002. P. 22-26.

[16] See LESSIG, Lawrence. Free Culture.

[17] The grandfather tells his grandson the story of the "copyright war" between copyright users and the cultural industry, with exciting details… explaining how the use of lawyers bomb by the culture industry, the counter-attack from libertarians through reverse engineering, cracking codes and cooperative work, until the end of the conflict. Then the grandson asked his grandfather: "And do they lose Grandpa?" And the grandfather answered: "Oh, yes, the libertarians and artists lost. And now the content is no longer free." And making sure his grandson that the content is no longer free, he charges: "It is 35 dollars by the history and you cannot tell it to anyone without my permission" (Source: http://nerdson.com/blog/world-wide-war/).

[19] DREIER, Thomas. Limitation: The Centerpiece of Copyright in Distress - An Introduction, 1 (2010), JIPITEC 50, par. 4.

[20] BOLDRIN, Michele; LEVINE, David. Against intellectual monopoly. Cambridge University Press, New York, 2008. p. 9-11 (total 298p).

[21] HOEREN, Thomas. Access Right as a postmodern Symbol of Copyright deconstruction? Associação Portuguesa do Direito Intelectual. Direito da Sociedade da Informação. Separata do vol. VII, Coimbra Editora, 2006, p. 19.

[22] See RICHARDS, Donald G. Intellectual Property Rights and Global Capitalism. The Political Economy of the TRIPS Agreement. M. E. Sharpe, 2004, New York, p. 3 (total: 242p).

[23] Some researches show that the impact of protection of intellectual property in some developing countries is smaller than in other developed countries - so it is necessary to understand especially why developing countries accept strong protection law (Acc. OSTERGARD, Robert L. The development dilemma: the political economy of intellectual property rights in the international system. New York: LFB Scholarly Publishing LLC, 2003. Law and Society. P. 60).

[24] DRAHOS, Peter. Information feudalism: Who owns the knowledge economy? Earthscan Publication Ltd, UK, 2002. p.12.

[25] LITMAN, Jessica. Digital copyright. Prometheus Books, New York, 2001. p.14.

[26] See also: LANDES. William M. & POSNER, Richard A. The economic structure of intellectual property law. 2003. New York, Harvard College. P. 3.

[27] A good example of the change is the traditional issue of "first use/sell theory": traditionally the buyer of a copy had the right to sell, rent, and lend it, without the need of authorization from the copyright owner. That's why video stores, public libraries, and art galleries are not illegal. This doctrine enforces only copies of protected works, being irrelevant and not applicable to cases of works which were not "transferred" by digital means. So digital blocking instruments start to be treated as illegal uses of the copyright owners, to prohibit copies and access. (LITMAN, Jessica. Digital copyright. Prometheus Books, New York, 2001. p. 79-83).

[28] DRAHOS, Peter. Information feudalism: Who owns the knowledge economy? Earthscan Publication Ltd, UK, 2002. p. 12.

[29] HOEREN, Thomas. Access Right as a postmodern Symbol of Copyright deconstruction? Associação Portuguesa do Direito Intelectual. Direito da Sociedade da Informação. Separata do vol. VII, Coimbra Editora, 2006. p. 23-24.

[30] GINSBURG, Jane C. The concept of Authorship in comparative copyright law. Paper n. 03-51, in Columbia Law School, Public Law & Legal Theory Working Paper Group, New York, 2003. To be downloaded via: http://ssrm.com/abstract_id=36848, p. 4

[31] BOYLE, James. The public domain: enclosing the commons of the mind. Yale University Press, 2008. P. 3.

[32] See LESSIG, Lawrence. Free Culture. 2004.

[34] LITMAN, Jessica. Digital copyright. Prometheus Books, New York, 2001. p. 184-185.

[35] Litman, p. 183.

[36] Litman, p. 183.

[37]Stop Online Piracy Act (SOPA) is a United States bill introduced by U.S. Representative Lamar S. Smith (R-TX) to expand U.S. law enforcement to fight online sharing and downloading in copyrighted intellectual property and counterfeit goods. Provisions include the requesting of court orders to bar advertising networks and payment facilities from conducting business with infringing websites, and search engines from linking to the sites, and court orders requiring Internet service providers to block access to the sites. The law would expand existing criminal laws to include unauthorized streaming of copyrighted content, imposing a maximum penalty of five years in prison. A similar bill in the U.S. Senate is titled the PROTECT IP Act (PIPA) - From Wikipedia.

[38] The Anti-Counterfeiting Trade Agreement (ACTA ) is a multi-national agreement for the purpose of establishing international standards for intellectual property rights enforcement. The agreement aims to establish an international legal framework to target counterfeit goods, generic medicines and copyright infringement on the Internet, and would create a new governing body outside existing forums, such as the World Trade Organization, the World Intellectual Property Organization, or the United Nations. The agreement was signed on 1 October 2011 by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and the United States. In January 2012, the European Union and 22 of its member states signed as well, bringing the total number of signatories to 31. After ratification by 6 states, the convention will come into force- From Wikipedia.

[39] The PROTECT IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PIPA) is a proposed law with the stated goal of giving the US government and copyright holders additional tools to curb access to "rogue websites dedicated to infringe or counterfeit goods", especially those registered outside the U.S. [1] The bill was introduced on May 12, 2011, by Senator Patrick Leahy (D-VT) and 11 bipartisan co-sponsors. The Congressional Budget Office estimated that implementation of the bill would cost the federal government $47 million through 2016, to cover enforcement costs and the hiring and training of 22 new special agents and 26 support staff. The Senate Judiciary Committee passed the bill, but Senator Ron Wyden (D-OR) placed a hold on it. The PROTECT IP Act is a re-write of the Combating Online Infringement and Counterfeits Act (COICA), which failed to pass in 2010. A similar House version of the bill, the Stop Online Piracy Act (SOPA), was introduced on October 26, 2011. In the wake of online protests held on January 18, 2012, Senate Majority Leader Harry Reid announced that a vote on the bill would be postponed until issues raised about the bill were resolved.

[40] LESSIG, Lawrence. After the Battle Against SOPA-What's Next? http://www.thenation.com/article/165901/after-battle-against-sopa-whats-next , January, 26, 2012.

[41] GOLDBERG, Danny. Kill the Internet-and Other Anti-SOPA Myths http://www.thenation.com/article/165837/kill-internet-and-other-anti-sopa-myths , January, 24, 2012.

[42] BENKLER, Yochay. Seven Lessons from SOPA/PIPA/Megaupload and Four Proposals on Where We Go From Here http://techpresident.com/news/21680/seven-lessons-sopapipamegauplaod-and-four-proposals-where-we-go-here . 25/01/2012.

[43] BRINDLEY, Dame Lynne J. Phoenixes in the internet era - the changing role of libraries. In BENTLY, Lionel; SUTHERSANEN, Uma; TORREMANS, Paul. Global copyright: three hundred years since the statute of Anne, from 1709 to Cyberspace. Edward Elgar Publishing Inc., Cheltenham, UK, 2010. p. 177.

[44] SIRINELLI, Pierre. The graduated response and the role of intermediaries: avoiding the Apocalypse or a return to the sources? In BENTLY, Lionel; SUTHERSANEN, Uma; TORREMANS, Paul. Global copyright: three hundred years since the statute of Anne, from 1709 to Cyberspace. Edward Elgar Publishing Inc., Cheltenham, UK, 2010. p. 479.

[45] Robert Darnton makes very clear in stressing that his prophecy is utopian "the affirmation of" Googlers "that Google may make available on the Internet and virtually all printed books," it is evident that some books escape from Google, there are books that are single hard copies and whose libraries cannot open Google. Moreover, in the digital age, companies come in great decline in overnight ... and nothing shall ensure that Google copies will last (DARNTON, Robert. A questão dos livros: passado, presente e futuro. Trad. Daniel Pellizzari. Cia. Das Letras, São Paulo 2010. p. 53-58).

[46] DARNTON, Robert. A questão dos livros: passado, presente e futuro. Trad. Daniel Pellizzari. Cia. Das Letras, São Paulo 2010. p. 72.

[47] BOYLE, James. The public domain: enclosing the commons of the mind. Yale University Press, 2008. P. 3.

[48] As suggested by Hide Lewis, taking an informed position about the history of property itself is one of the prerequisites of cultural citizenship in the twenty-first century, and intellectual property has been used to obscure the meaning of property (HIDE, Lewis. Common as air: revolution, art and ownership. Farrar, Straus & Giroux: New York, 2010. P. 8).

[49] p. 107, Litman.

[50] DRAHOS, Peter. Information feudalism: Who owns the knowledge economy? Earthscan Publication Ltd., UK, 2002. P. 12.

[51] Imagine business system like monopolized delivery of pizzas, for instance. DRAHOS, Peter. Information feudalism: Who owns the knowledge economy? Earthscan Publication Ltd., UK, 2002. P. 215-216.

[52] LITMAN, Jessica. Digital copyright. Prometheus Books, New York, 2001. p. 170,

[54] PEIFER, Nikolaus. Regulatory Aspects of Open Access. 1 (2010) JIPITEC, p. 133.

[55] BRINDLEY, Dame Lynne J. Phoenixes in the internet era - the changing role of libraries. In BENTLY, Lionel; SUTHERSANEN, Uma; TORREMANS, Paul. Global copyright: three hundred years since the statute of Anne, from 1709 to Cyberspace. Edward Elgar Publishing Inc., Cheltenham, UK, 2010. p. 186.

[56] DARNTON, Robert. A questão dos livros: passado, presente e futuro. Trad. Daniel Pellizzari. Cia. Das Letras, São Paulo 2010. p. 65.

[57] SIRINELLI, Pierre. The graduated response and the role of intermediaries: avoiding the Apocalypse or a return to the sources? In BENTLY, Lionel; SUTHERSANEN, Uma; TORREMANS, Paul. Global copyright: three hundred years since the statute of Anne, from 1709 to Cyberspace. Edward Elgar Publishing Inc., Cheltenham, UK, 2010. p. 481.

[58] For example: "Cellular telephone companies often give the Motorola phone away to new subscribers for free as an inducement to use their telecommunications services. Indeed, a world structured around access relationships is likely to produce a very different kind of human being." (RIFKIN; Jeremy. The age of Access. New York, Tarcher, 2000. P. 6, 7 and 93).

[59] KUHLEN, Rainer. Knowledge is the water of the mind - how to materialize rights to immaterial commons. See: http://www.kuhlen.name/MATERIALIEN/Vortraege2010/Open-colognefinal-141210-PDF.pdf.

[60] Litman calls "exclusive right to economic exploitation," where any attempt to profit from the work without permission would constitute infringement. And in this case, sharing music on the web would not consist in any infringement, but companies like Naptster could be sued because they get money with the activity, or even because its action is against the rules of unfair competition (LITMAN, Jessica. Digital copyright. Prometheus Books, New York, 2001. P. 180-181).

[61] SUTHERSANEN, Uma. Introduction to Part II In BENTLY, Lionel; SUTHERSANEN, Uma; TORREMANS, Paul. Global copyright: three hundred years since the statute of Anne, from 1709 to Cyberspace. Edward Elgar Publishing Inc., Cheltenham, UK, 2010. p. 174.