Agency in Institutional Context: Utilitarian Copyright and Technological Disruption

ABSTRACT

Different approaches in historical institutionalism have different understandings of how agency relates to its institutional setting. For some scholars, institutions are so restraining that only during times of crisis are agents sufficiently free to pursue change. For others, agents can work within institutions to pursue incremental change. However, even for these more agent-focused approaches, institutions are generally seen as restraining. Drawing on the agents-in-context approach, this article argues that institutions not only shape the preferences of agents but also the means to pursue these preferences. This is illustrated through two cases of technological change, which disrupted copyright law.

KEYWORDS:

• Historical institutionalism
• copyright
• meta-institutional context
• Sony Betamax
• peer-to-peer

Notes

1. The Betamax format proved to be much less popular among consumers than the rival VHS format. However, both allowed for home taping and thus had the same impact on copyright law. Whilst it was the Betamax that was subject to litigation, the legal implications of the decision were the same for the VHS format.

2. Federal courts of appeal with jurisdiction over a specific geographical area.

3. However, other legal scholars dispute the effectiveness of the Sony safe harbor in actually protecting new technologies from liability (Litman, 2005).

4. The accession to Berne was mainly to strengthen the U.S.’s position in negotiations for the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). By the 1980s, copyright and other intellectual property rights became important export industries for the U.S., causing the U.S. to pursue strong international protection of intellectual property. However, the U.S. efforts were severely undermined by its absence from the Berne Convention, prompting it to ascend in 1989.