There Is Always More Than Law! From Low IP Regimes To A Governance Perspective In Copyright Research
Journal of Technology Law and Policy, 22(2), 99-122
Building on the literature on low IP regimes, this paper develops a multi-model governance perspective for copyright research. Qualitative studies have shown that, in both low IP sectors and in heavily regulated sectors, creatives develop their own sets of rules, assumptions and routines that delineate accepted and objectionable practices. While there is empirical evidence, we still lack a theoretical underpinning to understand and inves-tigate these phenomena within a systematic and comparative framework. This paper develops a conceptual framework based on sociological institu-tionalism (SI). SI provides the theoretical basis for showing that mutually related rights and obligations, and the distinctions between right and wrong, possible and impossible actions are not only constituted by law but also by normative orientations and cognitive framings. This paper suggests a framework with four modes of copyright governance: (1) A regulative dimension, addressing the provision and enforcement of formal rules, laws, court decisions, terms of services; (2) a normative dimension, investigating the prevalent assumptions about legitimate and illegitimate behavior in a specific community or sector; (3) a discursive dimension, addressing the framings and debates on creativity, authorship, and originality; and (4) a technological dimension that investigates the embodiment of affordances and rules in infrastructures, devices, and algorithms relevant to creative work. Thus, when seeking to understand the framing and control of creative practives there is always more than law. These frames may align with legal provisions, but in many cases they do not. The paper applies this framework to existing studies on the governance creative production and dissemina-tion.