'You wouldn't steal a car' vs 'Information wants to be free' Regulatory failure of copyright law through the prism of Systems Theory Katarzyna Gracz Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Florence, 10.05.2016 European University Institute Department of Law 'You wouldn't steal a car' vs 'Information wants to be free' Regulatory failure of copyright law through the prism of Systems Theory Katarzyna Gracz Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board Prof. Dr. Giovanni Sartor, European University Institute (Supervisor) Prof. Dr. Jiři Přiban, Cardiff University (Co-Supervisor) Prof. Dr. Hans-Wolfgang Micklitz, European University Institute Prof. em. Dr. Gunther Teubner, Goethe Universität, Frankfurt am Main © Katarzyna Gracz, 2016 No part of this thesis may be copied, reproduced or transmitted without prior permission of the author Researcher declaration to accompany the submission of written work Department of Law – LL.M. and Ph.D. Programmes I Katarzyna Gracz certify that I am the author of the work 'You wouldn't steal a car' vs 'Information wants to be free' Regulatory failure of copyright law through the prism of Systems Theory I have presented for examination for the Ph.D. at the European University Institute. I also certify that this is solely my own original work, other than where I have clearly indicated, in this declaration and in the thesis, that it is the work of others. I warrant that I have obtained all the permissions required for using any material from other copyrighted publications. I certify that this work complies with the Code of Ethics in Academic Research issued by the European University Institute (IUE 332/2/10 (CA 297). The copyright of this work rests with its author. Quotation from this thesis is permitted, provided that full acknowledgement is made. This work may not be reproduced without my prior written consent. This authorisation does not, to the best of my knowledge, infringe the rights of any third party. I declare that this work consists of 130 000 words. Statement of inclusion of previous work (if applicable): I confirm that earlier drafts of fragments of this thesis have been already published in: Katarzyna Gracz, 'Bridging the Gaps Between Social and Legal Norms Concerning Protection of Intellectual and Artistic Creations: On the Crisis of Copyright Law in the Digital Era', The Journal of World Intellectual Property (2013) Vol. 16, no. 1–2, pp. 39–57; Katarzyna Gracz and Primavera de Filippi, 'Regulatory failure of copyright law through the lenses of autopoietic systems theory'. International Journal of Law And Information Technology, 2014, 0, 1–33; Katarzyna Gracz, 'On the Role of Copyright Protection in the Information Society. Anti-ACTA Protests in Poland as a Lesson in Participatory Democracy', 4 (2013) Journal of Intellectual Property, Information Technology and Electronic Commerce Law (JIPITEC) 21; Statement of language correction (if applicable): This thesis (has been corrected for linguistic and stylistic errors. I certify that I have checked and approved all language corrections, and that these have not affected the content of this work. Florence, 29.02.2016 To my three beloved boys: Ignanio, Tolo and Kajtek so that they always remember that one should never give up no matter how hopeless the process might seem. Gentlemen, thank you for being my strength. I would have never done it without you. For my Grandmother who taught me this lesson and my Mom, Dad and all the rest of my Family who never doubted in my ability to follow this motto. Kochani – dziękuję! Będzie rybka oraz pipka!1 1 The allusion is made to a popular Polish saying (Albo rybka albo pipka) which well illustrates the common belief that women cannot have it all. Oh yes, we can! It just takes double time or/and energy, motivation, patience and all the types of various resources, including the help of the whole community. According to Igbo and Yoruba proverb It takes a whole village to raise a child. It takes a whole tribe to raise two kids and write a PhD thesis. I feel utmost gratitude to all who voluntarily participated in this communal effort. This thesis is as much yours as it is mine. The mistakes committed and flaws in reasoning, however, belong solely to me. Summary The thesis aims at explaining current regulatory crisis of copyright law (understood as its inability to regulate social dynamics as regards production, reproduction, dissemination of and access to information goods) through the application of systems theory. It refers to the concept of autopoietic legal system in order to draft a model representing the ecosystem in which copyright law functions. This model not only allows for observing copyright regime as it stands currently but also for analysing how it evolved over time. It scrutinises the interdependencies between the legal system and other constituent elements of its ecosystem: politics, economy, art, science, technology, religion, mass media, education as well as non-functionally differentiated segments of society: circles of relatives and friends. The main goal of this analysis is to highlight the fact that the current regulatory crisis of copyright is the result of the legal system's failure to equally acknowledge all the diverse rationalities constituting its ecosystem. The primary hypothesis of the study is that the core of the problem may be attributed to the divergence between legal norms, and competing non-legal copynorms constructed in the process of co-evolution within various elements of the model in question. In the analysis all the relevant copynorms understood as segmented social norms regulating social dynamics with respect to production, reproduction, dissemination of and access to information goods have been reconstructed to indicate their potential to oppose legal regulations. The thesis pivots around the concept of reflexive justice which refers to the equal acknowledgement of colliding rationalities. It concludes with the firm statement that copyright law in the digital environment needs profound reform. The concept of reflexive justice as developed within the systems theoretical approach is perceived by the author of this thesis as the most promising starting point for the new philosophy of copyright law. 1 2 Table of Contents Summary................................................................................................................................1 Acknowledgements................................................................................................................7 I. Introduction.........................................................................................................................9 1. Nature of copyright....................................................................................................9 2. Regulatory failure of copyright law in the digital environment. Succinct description of the problem....................................................................................................................9 3. Hypothesis and research questions...........................................................................12 4. Justification of the chosen methodological perspective and novelty of the applied approach...........................................................................................................................14 5. Methodology and description of the analysed model...............................................20 5.1 Theoretical stance..................................................................................................20 Concise Introduction to Systems theory..................................................................20 Law as a normative autopoietic system...................................................................28 Concept of the reflexive law as developed in the systems theory............................32 Justice under reflexive law......................................................................................35 5.2 Description of the analysed model.........................................................................36 Law..........................................................................................................................37 Politics.....................................................................................................................38 Economy..................................................................................................................39 Science....................................................................................................................41 Technology..............................................................................................................41 Art...........................................................................................................................44 Religion...................................................................................................................49 Mass-media.............................................................................................................53 Education.................................................................................................................57 Family and friends...................................................................................................64 Open Source, Open Access and Creative