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Communication Dans Un Congrès Année : 2012

Copyright and the Public sphere


What is usually considered to be the first Copyright Law, passed in England in 1710. The Statute of Anne, granted book publishers legal protection for 14 years with the commencement of the Statute. The law reflected social and economic transformations of the time especially the rise of readers and the emergence of "unlicensed" publishers. The latter, taking advantage from a legal vacuum between 1695 and 1710, where the monopoly of 'licensed' publishers held by the Worshipful Company of Stationers and Newspaper Makers (the Stationers' Company), came to fulfil communication needs of the forming public. The position of the Stationers' Company had been traditionally strong because every printed book had to be registered and only members of the Stationers' were allowed to register them; but after the Licensing act came to an end in 1695, the Scottish and Irish publishers were selling and printing unlicensed books in the English market avoiding the taxes and the inscription at the Stationer's register. This referential starting point of the Copyright regime coincides chronologically with major epistemic changes: the Enlightenment. The legislation of copyright as a form of property should not be separated from these changes in science, art and philosophy. But they should not be separated either from the conditions related to the political change and the emergency of the Bourgeois Public Sphere. A few years before the Statute of Anne, John Locke distinguished the right of property from nature in probably one of his most conflictive works "Two Treatises of Government". At the same time, the English writer assumed the right of property to be one of the fundamental rights of the individual. This reasoning reveals that before the distinction between right and nature, the idea of property as a right could not be formulated. Without property being a fundamental right, then, the copyright legislation would not have taken place. Locke's work is also used as reference to trace the origins of the bourgeois public sphere. His "Two treatises", with his "Letters of Tolerance" are milestones in the transformation of the considerations around religion and opinion: again, the split between thought, opinion and belief. Such an epistemic distinction lies at the base of any discussion related to the formation of the public opinion. The public opinion is grounded in the public sphere. It was not long before the writings by Locke that Kant proclaimed the need of the individuals to set their own rules, collectively, individually, as having come to age for it. Religion was displaced to the realms of the transcendental; and philosophy was given the role to explore the realms of the practical reason (see Sue Curry Jansen). The conquest of a new field of thought aside from the divine activity allowed the presence of a new context of action, thought decision-making and government. This context is the one immediately related to the formation of a private sphere split in two dimensions: the domestic dimension of individual privacy and intimacy and the economic dimension of private property and business. The first law of copyright has to be considered in this context of political and epistemic change. The new conditions of knowledge for the law, the context of social and economic changes, the interests for profit-making and the new logics of the market are very visible in the Statute of Anne. But it is also clear that the copyright law was related to the new formation of the bourgeois public sphere. Only thanks to this exercise of contextualisation the necessary proximity between the laws of copyright (related to privacy of property and of creation as thought) and the formation of the bourgeois public sphere can be made visible. It is not, actually the public sphere what is of matter in the structural transformation as discussed by Habermas, but the emergence of a private realm that modulates the particularities of the public sphere provoking a structural transformation (Strukturwandel) that goes from the Representative Publicity of the Feudal system to the new formed Bourgeois Public Sphere. It is this private element and precondition for the functioning of an (ultimately imaginary or mediated) public sphere that is of particular relevance in the study of current copyright laws in the digital media. Present transformations of the copyright system are to be studied as part of international policy regimes of Intellectual Property, built on the Berne and the Rome Convention in the late 19th century that slowly transformed into the current WIPO under the auspices of the WTO. The progressive enlargement of the economic private sphere concerning business and property at expenses of a notorious reduction of the policies related to the intimate formation of the critical thought, are affecting the same nature of the private sphere. The copyright laws were once created with the intention of contributing to the "Encouragement of Learning" but now they seem to reinforce a private sphere without individuals with critical opinions. The forms of the copyright law and the policies implemented related to them seem to negatively affect the proper functioning of the public sphere. This paper explores the continuities, quality and the changes in the features relating the copyright policies at national, European and International levels to determine to what extent and under which conditions could copyright be a hindrance in the functioning of a proper democratic public sphere. This paper explores the laws of intellectual property of France, Spain, Germany, Austria and the UK as well as the Copyright directives promoted by the European Parliament (ie. Directive 2001/29/EC) with the purpose of harmonise the various copyright laws of the member states and submit to the Copyright Treaty of the WIPO. The analysis of the laws will be done seeking at the forms and references under which the national and European Public Spheres are directly or indirectly taken into consideration. Only after a proper analysis of the legal specificity the paper will consider the conditions and the context in which these treatises and regimes are taking place and therefore extend the notion of public sphere that is built with them.
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Dates et versions

hal-00840584 , version 1 (02-07-2013)


  • HAL Id : hal-00840584 , version 1


Katharine Sarikakis, Joan Ramon Rodriguez-Amat. Copyright and the Public sphere. Communiquer dans un monde de normes. L'information et la communication dans les enjeux contemporains de la " mondialisation "., Mar 2012, France. ⟨hal-00840584⟩


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