International rules on the protection of copyrighted works

The earliest international rules on the protection of works under copyright law sought primarily to create an international community committed to the reciprocal protection of each country’s cultural productions. These multilateral conventions aimed to establish shared standards that would serve as a common benchmark for all members of the international community.

A second major step toward the internationalization of copyright came with the conclusion of the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights) in 1994, which incorporated intellectual property issues into the framework of the World Trade Organization (WTO), successor to the GATT. The inclusion of intellectual property within the WTO reflected the significant impact of these rights on international trade (Roffe, 2007).

Shortly after the adoption of TRIPS, it became evident that the existing international framework was insufficient to address the technological transformations that were emerging, particularly the expansion of the Internet and the combination of digital technology, compression technology, and, later, peer-to-peer (P2P) file-sharing programs.

In response, the international community worked within the World Intellectual Property Organization (WIPO), a United Nations agency, to design new treaties capable of ensuring adequate protection for copyrighted works and related rights in the new context. This effort culminated in the so-called “Internet Treaties,” concluded in Geneva in 1996. Two treaties were adopted: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).

The new paradigm in the legal protection of content

The scenario described compels a reassessment of whether traditional rules governing the legal protection of content can remain unchanged. A new paradigm has emerged, and it is likely to require substantial modification of principles that have been in place for centuries. This transformation is largely shaped by altered relationships between content producers and users, by the context in which infringements occur, and by a shift in the object of protection from “copy” to “access.”

At this stage, the content industry has recognized that simply insisting that infringements must cease because copyright laws so provide lacks practical effectiveness. Although millions of users infringe copyright online each day and are aware of the illegality of their actions, this awareness does not appear to reduce the scale of infringement. On the contrary, as time passes, many users abandon traditional formats and turn to the Internet to obtain content free of charge. This trend reveals both the limited social acceptance of intellectual property laws in this domain and the need to question whether individuals perceive such conduct as genuinely wrongful (Sánchez Herrero, 2008).

The entertainment industry has gradually learned that a rigid approach yields limited results. Even if the majority of online consumption of protected content remains unlawful, restraining users within a universal, open, and decentralized network is practically unfeasible. Ending infringements would require an enormous number of costly legal actions and, more significantly, pursuing one’s own customers. This marks a fundamental difference between what might be termed “old piracy” and “new piracy.”

In the analog era, industries generally targeted intermediaries—clandestine organizations engaged in selling illicit products—rather than end users. From a commercial standpoint, this approach was more manageable, since the relationship between producer and consumer remained less directly affected. The sanction fell upon the intermediary. In the digital era, however, that intermediary has largely disappeared, and major content producers often face the prospect of taking action directly against their own customers.