Framing standards, mobilizing users: Copyright versus fair use in transnational regulation

ABSTRACT

Following the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) intellectual property rights, and more specifically copyright, have become the subject of highly politicized conflicts. In this paper we analyze how these conflicts shifted from the political arena to private standard-setting sites, where two opposing coalitions of actors pursued competing initiatives – an industry coalition which aimed at enforcing copyright protection through Digital Rights Management and an emerging coalition of civil society actors which sought to develop a digital commons based on copyleft licenses. Paradoxically, the industry coalition, which had very successfully lobbied international organizations, ran into trouble developing and enforcing private regulation in the market place, while the civil society coalition proved to be more effective in the market than in the political sphere. The findings of our analysis indicate that the strategic use of organizational forms and collective action frames can be more decisive for the mobilization of users than material resources, and that the success of collective action frames depends on their compatibility with user practices. Based on the argument that regime shifting from intergovernmental to private governance can open up new and favorable spaces for weak actors to experiment with alternative forms of regulation, the paper contributes to the literature on the politics of regime complexity. The paper furthermore highlights the importance of studying non-elite actors and their day-to-day practices to gain a better understanding of changes within the international political economy.

KEYWORDS:

• International regime complexity
• intellectual property regulation
• standards
• implementation politics
• mobilization
• framing

ACKNOWLEDGEMENTS

Earlier versions of this paper have been presented at international workshops on ‘Transnational Copyright: Organization, Mobilization and Law’, Villa Vigoni, June 12–15, 2010 and ‘Transnational Business Governance Interactions’, European University Institute, Florence, May 23–24, 2011. We are grateful to the participants of these two workshops for their helpful comments and suggestions, not all of which we were able to follow, as well as to the three anonymous reviewers of this journal. Parts of this paper build on an earlier German article (Dobusch and Quack, in press).

Notes

1. In the subfield of copyright, the post-TRIPS period was also a period of protest and resistance. Whereas industrial lobbying faced little public protest regarding copyright law during the course of the TRIPS negotiations, only a few years down the road, during the negotiations on the so-called WIPO Internet treaties (i.e., the WIPO Copyright Treaty and the Performances and Phonograms Treaty), an opposition voiced its demands for fair-use provisions of intellectual property rights (Sell, 2003). However, it was not strong enough to prevent the broad prohibition of circumventing technical copy protection, as we will discuss in a later section. Within the European Union, a campaign formed against the guidelines to implement intellectual property, which also failed to achieve any significant changes to the draft (Haunss and Kohlmorgen, 2009, 2010).

2. It is however increasingly difficult to draw a distinction between producers and users of immaterial goods when users are routinely interacting and altering content while utilizing and sharing it online.

3. Regime complexity in the policy domain of intellectual property rights increased in post-TRIPs period (Helfer, 2004, 2009; Sell, 2009). While TRIPS clearly expanded and unified the protection rules of intellectual property rights, it also added the WTO as another forum of rule-making to those already existing in the field of intellectual property regulation (notably the World Intellectual Property Organisation and the Bern, Paris and Rome conventions). More importantly, TRIPS created ‘tension points’ in other areas, such as human rights or public health, which engendered resistance from developing countries and civil society groups (Helfer 2009: 40). Regime shifting by these actor groups led to the establishment of additional intellectual property regulations in the context of the WHO, UNESCO and FAO which were more favourable to their goals and more accessible for them. The balance of power, however, remained tilted as industrialized countries responded by attempting to expand the protection of intellectual property rights beyond those of TRIPs in their regional and bilateral trade and investment treaties with developing countries (Helfer, 2009; Sell, 2009).

4. See Granovetter (1978) for the analysis of threshold effects on collective behaviour and Granovetter and Soong (1986) for interpersonal effects on consumption.

5. From a sociological perspective this can also be perceived as the development of a community of standard users (Djelic and Quack, 2010, in press).

6. Research on social movements has so far devoted only little attention to standards as outputs of mobilization processes (Guigni, 1998, 2004; Amenta et al., 2010).

7. Although mobilizing for standards is often – and also in our cases – led by interest coalitions and not by social movements in their narrow sense, these are nevertheless dependent on organizational and discursive strategies to act collectively and to win over previously uninvolved third parties (see Roy and Parker-Gwin, 1999; Diani and Bison, 2004). We follow Sell and Prakash (2004) in conceptualizing strategies of both industry and civil–society coalitions as instances of collective action rather than distinguishing a priori between instrumental and normative orientations (see Keck and Sikkink, 1998).