Copyright and the Internet in a Growing Need for Architectural Transformation

Lawrence Lessig, one of the great thinkers on copyright in recent times, proposes a new reflection on this subject and how it is treated with the advent of the internet [1]. Initially in his studies, he quotes Litman, who in 1994 said that copyright law in the early twentieth century was difficult to understand and affected few people. However, this has changed, revealing an even more difficult regulatory framework and continuous interference in all.

For Lessig, today there are different “ecologies of creativity”, in which each author has his perspective and intention in the creation itself, being able to involve completely or not money, besides wanting to pass through both. This is important for the compensation of the authors since they are dependent on a copyright model that is efficient but that for different interests to live together and complement each other, there must be protection in all these ways, creating incentives while protecting authors’ freedom.

Such forms change with different technologies, governments, and economics, but the internet has affected copyright in a more drastic way, creating new markets, increasing the diversity of accessible culture, enabling the purchase and consumption of productions from different places and ways. But did copyright follow these changes? For Lessig, no, the great motif being the very architecture of copyright, which does not fit into the digital world, regulating much and precariously.

One of the most recent examples of this need for change is streaming platforms, in which the flow of data between the user and the server is done momentarily without the need for copying or transfer of ownership. In the current copyright model, such practice does not clearly break the established legal directives and creates a result that appeals to the end user, but it greatly affects authors in terms of remuneration when they observe their subjection to abusive business contracts [2]. This shows the lack of protection of copyright architecture in terms of author remuneration, which promotes a less competitive environment and less incentive for creators.

In general, in view of the advent of the Internet, even without modifying legal authorship from a legal point of view, they provided a new reality related to the consumption of artistic, literary and scientific works. In this sense, it is necessary to think of new solutions that harmonize the author’s right over his works and the way in which society interacts with them.

One possible solution is the Fair Use Doctrine, constructed doctrinally and jurisprudentially in the United States. Although in the United States the copyright of authorship is the copyright, such doctrine may interest Brazilian law because there is the possibility of being used to justify the use of intellectual works available on the internet [3^], Besides being able to authorize the fair use for parodies, obtaining private copies and research [4]. The application of this institute is always on a case-by-case basis, obliging the judge to consider four criteria: a) The purpose and characteristics of the use; B) The nature of the protected work; (C) the quantity and substance of the portion used in relation to the protected work as a whole; D) The effect of the use in relation to a potential market and the value of the protected work [5^]. However, Fair Use also presents certain problems, especially with regard to indeterminably, since often the magistrate is guided by vague and ambiguous factors [6].

Other solutions that propose a new way of dealing with copyright are copyleft and creative commons. The first of these uses the copyright system to ensure that everyone receives their version of the work can use, modify and distribute the original work as its derivative versions [7]. Thus, the authors (whose legal definition in Brazilian law is in Law 9.610 / 1998) seek to give people greater freedom to modify the original work. Copyleft was inspired by the “free software” movement, adapting the four freedoms that it presented: a) freedom to execute the program for any purpose; B) freedom to study how the program works and adapt it to its needs; C) Freedom to redistribute copies; (D) Freedom to improve the program and liberate improvements [8]. The creative commons were created by the aforementioned American professor Lawrence Lessig, who allows authors to license their works through flexible licenses. In this case, the licensing nature of the creative commons, rather than the assignment, should be emphasized. The prerogative of licensing his work is of who owns the patrimonial rights of her, being not able the future transferee to license it. Creative commons allow eight types of licenses: a) assignment; B) non-commercial use; C) not to derivative works; D) sharing by the same license; E) CC-GPL and CC-LGPL (free software licenses); F) sampling (permission for short excerpts to be used); G) sharing of music; H) developing nations (allows the author to place less restrictive conditions on his works in developing countries) [9]. It is necessary to say that such licenses can be combined, that is, the same work can have more than one type of creative commons license.

Finally, it is necessary to point out that none of these possible “solutions” is a substitute for copyright or copyright, but rather that they are based and grounded in them, seeking to harmonize the tension created between the author’s right of the work and The society that wants to consume it.