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TBGI Working Paper 1

Transnational Copyright: Misalignments between Regulation, Business Models and User Practice

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Leonhard Dobusch and Sigrid Quack

July 2012

Abstract

In this paper we analyse discursive struggles over what is referred to as legal and illegal user practices in the internet as an outcome of regulatory uncertainty. The latter, in turn, is examined in the context of a multi-layered transnational copyright regime characterised by three features: the absence of an universally recognized single authority in charge of law- making, fragmented and partially contradicting forms of regulation of global, national and sectoral scope, and considerable indeterminacy of rule interpretation and application arising from the variety and distinctiveness of local usage contexts. We argue that notions of legality and illegality are used strategically by different actors to resolve perceived misalignments between regulation, business models and user practices. The results indicate that the meaning of legality and illegality, while often presented as well-defined distinction, in the case of internet user practices is often far from clear-cut and generally accepted. In fact, copyright industry, intermediaries, users and regulators are involved in what Black (2002) refers to as “regulatory conversations”. Analysing these regulatory conversations offers a revealing entry point to study how under conditions of transnational regime complexity and diffusion of new technology solutions to regulatory uncertainty are negotiated in a multiplicity of social contexts.

Keywords

International regime complexity, copyright regulation, regulatory uncertainty, internet- based business models, internet user practices