Fence as Fence Can - Intellectual Property and Electronic Self-Regulation
CODING REGULATION. ESSAYS ON THE NORMATIVE ROLE OF INFORMATION TECHNOLOGY, Information Technology & Law Series, L.F. Asscher, ed., T.M.C. Asser Press, The Hague, Netherlands, 2005
46 Pages Posted: 14 Oct 2005
At the very heart of the 'code as code' discussion is the question whether rules embedded in electronic code can have, in addition to their technical function, a social or democratic function in the sense that they could replace normative rules. When commenting on the relationship between electronic code and law, Reidenberg argues that law can play several roles with respect to electronic code, namely to encourage the development of Lex Informatica, to sanction evasions of Lex Informatica and to use Lex Informatica as an effective substitute for law. In other words, the argument goes that electronic code, under certain circumstances, could be as conclusive as legal 'code.'
The goal of this paper is to examine whether and under which circumstances, intellectual property law, and more precisely copyright law, might leave room for a distinct role of electronic code in the organisation of property. This question gains an additional meaning in the light of the tense relationship between technical measures and traditional copyright law. Can controllers of electronic code introduce new, privately made rules, override existing limitations or control resources which, so far, have not been subject to intellectual property law? More specifically, the paper is interested in the potential of electronic code as an instrument for self-regulation in the internet environment. In so doing, it will display the European perspective.
Whether or not users of electronic code may override existing limitations and exceptions in copyright law - one of the prominent questions of the electronic code discussion in the copyright field - depends to a great extent on whether the development of an alternative rule system based on electronic code is desirable and legally feasible. The chapter will show that there might be a distinct 'democratic' role for electronic code, and that electronic code-rules might differ in some important aspects from contractual rules as means of self-regulation. It will also show, however, why electronic code, after all, is not such an effective substitute to realise public information policy goals in copyright law.
Keywords: technological measures, self-regulation, copyright exceptions, intellectual property regulation
JEL Classification: K11
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