The new landscape and legal challenges

Addressing the legal challenges arising in the field of content protection in the so-called era of Convergence is not a simple task. First, there is a marked dissociation between what the law establishes and the daily conduct of millions of individuals who infringe copyright. Second, this scenario differs so profoundly from the previous one that its boundaries and contours are difficult to define.

This new world is radically distinct from the one in which legal standards for content protection were consolidated over centuries. We now operate in a context where technology has compressed time and distance. As Hobsbawm observed, each day and each hour ordinary households have access to more information and entertainment opportunities than emperors possessed in 1914. Technology allows individuals separated by oceans and continents to communicate at the touch of a few buttons. Any serious analysis must therefore move beyond legislation and case law and incorporate sociological and economic dimensions.

A first element to consider is the consolidation of the Internet as a universal, digital, decentralized, and open network. A second is the massive shift of users toward online content consumption, including through mobile device networks. A third is the existing legal framework governing intellectual property and its effectiveness in confronting new cultural habits.

The open and decentralized architecture of the Internet, lacking a central authority capable of exercising strong control, complicates the effective enforcement of national regulations. Its global reach and relative autonomy from state sovereignty have facilitated the free circulation of content, much of it protected by laws that prohibit reproduction and distribution without authorization.

In practice, a large segment of the public disregards or remains unaware of these restrictions. Anonymity and the low probability of sanctions encourage the downloading and sharing of content without regard to legality (Oksanen and Välimäki, 2007). The result is a visible gap between legal norms and social behavior.

Not all online content is infringing. Some material is voluntarily published for free use, such as so-called UGC (user generated content). The legal conflict arises primarily in relation to content produced industrially by companies or by professional artists who do not consent to the unrestricted and unpaid use of their works. Before the mass adoption of the Internet, the distribution of cultural goods—such as music on vinyl, cassette, or compact disc—took place through clearly defined and controlled channels. Digitalization and technological convergence profoundly altered that structure.