© The Author(s) 2015Cláudio LucenaCollective Rights and Digital ContentSpringerBriefs in Law10.1007/978-3-319-15910-2_3
3. Why Does Law Even Care?
Paraíba State University, Paraiba, Brazil
In the previous chapter, prior to initiating the so to speak legal analysis of the theme, the advent of digital technologies and how they allow new forms of social interplay was covered. Collaborative mechanisms that are made possible through this enhanced social interaction were also examined, and it was possible to point out an economic dimension, in the form of opportunities that emerge both in the form of the sharing drive of the discussed collaboration model, and in the disruption that the creation and introduction of digital technologies may and have been causing in our lives.
The path that was chosen to approach the legal aspects of the issue may suggest this economic contour is the only one that is relevant to establish repercussions that are to be felt by Law. This impression is false, though. For as much as an economic extent is important to draw legal effects, and tempting as such a pragmatic approach may seem, it is by all means unacceptable to despise that the development and the incorporation of digital technologies in everyday human life both have paramount impact over the exercise of fundamental and personality rights, as well as over other non-economic values duly protected by Law, as the right to take part in cultural life and to enjoy the benefits of scientific progress and its applications.1
That being said, it is appropriate to conclude that the legal interest in digital technologies originates out of the simple and obvious insight that their effects and the behavioral transformations they induce in the social tissue can—and already do—interfere with the sphere of rights and obligations of both legal and natural persons.
That alone is enough for Law and its structures to care.
3.1 The Scale of the Economic Repercussion of the Creation Industry
In medio stat virtus. If it is improper to neglect other dimensions of the legal interest concerning digital technologies, it is equally inadequate to disregard the significancy of the economic component, mainly when these digital technologies are employed in the universe that is the object of this study, namely, the creation and distribution of artistic and scientific content. In the past centuries, powerful conglomerates and a strong industry sector were organized and have prospered around the economic dimension of creativity. That was only viable following the fact that it was possible to add economic value to an activity which essentially used human expression as its primary input. The first legal mechanisms concerning the matter in the 18th2 century promptly established a clear economic dimension concerning the activity and did not hesitate to highlight that the entrepreneurial operation surrounding the artistic expression was to be unquestionably protected and supported by Law. It is difficult to imagine Intellectual Property and Copyright under the spotlight in the critical discussions they dominate today, had that option been different, for any reason.
This is not to say that all possible uses and transactions involving content, and more specifically digital content, are strictly commercial. Not only noncommercial uses are possible and welcome, they have been experienced, and as the economic debate evolves, even an economy of gratuity is considered, involving “economic exchanges which are unconventional in that goods and services are delivered without money but in the expectation that they will be paid for after being used.”3 Such schemes present alternatives to measure and consider other values, like symbolic exchange, happiness, time and emotional dynamics,4 that in regular transactions are unusual to traditional economy, but that due to new arrangements and conditions—digital mechanisms and applied collaborative technologies amongst them—may have developed some sort of economic appreciability that can render them monetizable, even if potentially. This is to say that non-commercial does not always and necessarily mean non-economic.
But the plain, appreciable economic effect of digital technologies in markets gives a significant overview of its size and scale. Figures may not always enjoy a high degree of accuracy, and the very delimitation of what comprises digital economy is not itself a simple exercise, but recent attempts of estimation of the phenomenon reveal that “by 2016 the Internet economy in the G-20 economies will be worth USD 4.2 trillion (up from USD 2.3 trillion in 2010),” with Internet representing almost one tenth of the Gross Domestic Product (GDP) in South Korea and the United Kingdom, and its related economic activities growing at a rate that far exceeds the growth rates of conventional sectors.5 In the European Union, digital technology related-industry corresponds to 4.8 % of the economy, what stands for 25 % of total Research and Development businesses, not to mention that the sector is not only important as such, but it is also a very important element behind the increase in general productivity rates.6
In business to consumer (B2C) e-commerce only, Asia is the largest region in the world, which can be largely credited to the size of the Chinese market, having achieved a turnover of 406.1 billion and a growth rate of 16.7 %, whereas Europe achieved a turnover of 363.1 billion, having grown 16.3 % and North America a turnover of 333.5 billion, recording a 6.0 % growth.7
Traditional activities obviously face enormous challenges to migrate into the digital economy. Newspapers, for instance, have been experiencing a considerable decline both in print circulation and in advertisement revenues in the past years all over the world. Yet, recent studies carried out in the United Kingdom through Big Data tools reveal that their average revenues are still over £20 billion.8 To tackle the pitfall and resist in the field, players like Telegraph Media Group (TMG) have decided to face the operation of the print newspaper not anymore only in itself, but as “an essential part of a multi-platform business.”9 Taking steps in this direction, the company jumped from 14 % of income coming out of digital sales in 2006 to 47 % by 2011, in a period when the number of digital customers grew from 90,000 in 2006 to 267,000 in 2011, when the company’s turnover achieved £427 million.10
A more specific look at the industry whose commodity is creative content reveals its noticeable importance. In 2007, global figures for digital games and music industry already indicated a yearly revenue of over USD 20 billion, while digital advertising amounted to approximately USD 50 billion, representing 10 % of total worldwide advertising.11 In the European Union, where 1.4 million small and medium sized enterprises (SMEs) are Intellectual Property-related industries,12 the sector stands up for 39 % of the global economic activity in the area, which represents an annual figure of €4.7 trillion, and for 26 % of all employment, corresponding to 56.5 million jobs.13
Diving even deeper and confining our investigation to the music industry only, almost 10 million people are directly and indirectly employed in the EU, and the economic output of the sector exceeds €500 million, or 4,2 % of the total share of GDP.14 Interesting to notice that contrary to what lobby associations of record labels claim, worldwide music industry overall revenue has not declined, reaching almost USD 60 billion in 2011. In 2012, around 34 % of global revenue from the sector came from streaming, downloads and the exploitation of other digital channels.15
3.2 Technology Itself Can Play a Regulatory Role
Another important, yet much less explored aspect to consider when pondering the reasons for Law to engage in close interactions with digital technologies is that the degree of transformations they inaugurated is such as to create conditions to turn their own infrastructure—code, architecture, networks, improvements, restrictions, technical rules and other structural components—into elements that will integrate the legal framework, and thus directly serve the purpose of limiting or promoting values, prohibiting conducts, investigating behaviors, as a true and maybe the most effective control tool ever.
To this extent, technologies themselves constitute new grounds for social infrastructures, and constitution in the sense of “an architecture—not just a legal text but a way of life—that structures and constrains social and legal power, to the end of protecting fundamental values.”16 The forces driving this architecture, currently influenced by strong political and economic ingredients, will certainly use their power to push the structure in the directions of values that interest them. Governments and economic actors, for instance, need a digital space where their tasks are made more simple and efficient. By making it clearly possible to identify who is who, doing what, when and where in a digital space, a safer environment is built, in which both businesses’ and State’s interests and objectives, in general, are more easily attained.17 By promoting or inducing the use and the adoption of certain technologies, it is currently possible to interfere directly, more precisely, with the regulation framework of life in legal systems.18