The term 'path dependence' is generally used to describe the development of technological standards and how they ‘lock in’ a given technical solution. The QWERTY keyboard is often given as an example of path dependence - the fact that the costs of changing the keyboard to a better, more efficient solution, hinders change. The same can be said about much of the copyright legislation today, but then at the expense of privacy and other rights.

It is no surprise that the companies making and selling QWERTY keyboards have never been eager to switch standards, as they would then lose their market advantage. In a similar sense many of the legal solutions embedded in how copyright is regulated have become path dependent and locked-in too.

Copyright laws keep on being ‘copied’, even though there are seemingly better solutions out there. The industries that depend on copyright are not in favor of change because this would mean that they would lose authority and power, and possible revenue. The worst consequence of this “path dependence” is that copyright interests gain at the expense of everyone’s privacy.

Let me explain how.

To grasp the internal path dependence of copyright is to try to grasp a bigger, more complex development. As most people know, there is a lot of inconsistency between online behavior and copyright regulation. So, when a EU directive like the one on ”The Information Society” criminalises more actions in relation to copyright, when the directive on Intellectual Property Rights Enforcement breaks down the privacy of the Internet users, and when three-strikes laws for copyright violators are discussed widely across Europe, it all says something about the bigger trend, about the ‘path’ that’s chosen.

It is not a surprise that the law is in many aspects very dependent on its history. However, historical and old-fashioned concepts and principles tend to create paths that also lock in future legal directions. The problems occur when laws relate to the past in a manner that fails to include or to grasp important changes in society – such as the Internet and digitalization. Sometimes laws are so locked in that they cannot even consider alternatives that might be more appropriate in these ‘new times.’

Copyright is interesting in this regard because it has ended up in a seemingly insurmountable conflict between social and legal norms, making this path dependence analysis all the more relevant. As mentioned above, the path dependence of European copyright serves as a strong argument for those who benefit from its conservation.

The entertainment industry doesn’t want to change, it’s not in their interest that the regulation gets more in tune with society – instead, the industry wants even stricter copyright laws. Longer copyright lifetimes, stronger protections, more intrusive methods for detecting copyright violations. They are fighting for their monopoly. But let’s not forget that the reason the industry has become powerful in the first place, is that the legal development had time to get established and mature before the Internet came along.

Now, what’s the problem?

There are several problems with this out-of-tune-with-reality-legislation. Firstly, the special interest of copyright has become so strong that it gets tangled up with several other types of legislation, including legislation meant to fight terrorism. And it’s not only the file-sharers and copyright violators who suffer the consequences. Everyone’s Internet traffic will monitored more as a result.

Secondly, neutral intermediaries such as ISPs are increasingly being targeted to choose sides in the copyright ‘conflict’. In Europe, we can see this in the Enforcement Directive, and the Telecoms Reform Package. The recently negotiated Anti-Counterfeit Trade Agreement (ACTA) is also a good example where the same is happening on a global scale. Along the same lines, a recent report from the European Commission discusses (PDF 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 should be targeted for their role as data carriers.

Thirdly, the key role of ISPs is also part of a bigger issue that concerns the basic fundamentals of the Internet as we know it. Old copyright principles are now used to define what the Internet is. This means that the development of copyright, in a broad sense, not only rebuilds the Internet in terms of traceability and accessibility (gated communities), but also legal enforcement in terms of mass-surveillance.

It is important to realize 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.

In summary we can say that the copyright path is reproduced (copied) and strengthened in various legislative efforts. 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 behind it. As a result, copyrights take precedence over other rights, such as privacy and sometimes even property.

The path dependence of copyright leads to an imbalance of principal importance between the interests at stake. The entertainment industries and other copyright profiteers define to a large degree what the public can and cannot do, and the copyright interest gain at the expense of the privacy of everyone. We really have to wonder whether that’s a good thing..

—

Stefan Larsson is a researcher in sociology of law and co-founder of the research group Cybernorms at Lund University, that recently ran a survey on file sharing at The Pirate Bay.

Read more in a longer academic article on the path dependence of European Copyright that Stefan recently published in ScriptEd, a journal of University of Edinburgh’s School of Law.