The Evolution of Copyright Law and Inductive Speculations as to Its Future

Abstract

The four hundred years of evolution of copyright law indicates that, from its inception, copyright law has served as an arena for a struggle between clashing interests: private against public and economic against societal. These core interests were developed, becoming more sophisticated in time. However, the development of the surrounding settings of copyright law, spearheaded by technology, did not eliminate the basic clash of interests, although it did introduce new elements that further complicated it. Therefore, as long as the same nexus of interests remains relevant, there is no reason to believe that a totally new legal regime is likely to appear.

Moreover, history teaches us that major paradigm shifts concerning basic concepts in copyright law were achieved through legislation, nationally or internationally, while common law courts serve as a means for gradually developing those basic concepts. In the current copyright crises, the basic notion of copyright as a property right, along with its scope and possible limitations, is facing a challenge. The mass diffusion of works indicates the need for a change in the exclusivity rules, for example by allowing “opt out” mechanisms or by using concepts of mens rea for liability, or allowing more room for exceptions and limitations to copyright. Developments of this kind, however, are being blocked by obligations under international treaties, the first of which is the Berne Convention. Therefore, significant developments and changes in the fundamentals of copyright law will require acknowledgement by international law. Achieving such an end in the current political and economic climate seems almost impossible. Nevertheless, a paradigm shift could be introduced into the various international instruments if national governments were to serve as agents for social change.

Keywords: Copyright Law, Copyright Law History, IP Internnational Law, Berne Convention, Legal Evolution, Internet intermediaries