By, Allan Rocha de Souza

The fifteenth century houses important both social and technological transformations, which mark the emergence of a new modern era, with remarkable ruptures with the previous period. The creation of Universities and their independence towards Church, in the late Middle Ages, had already resulted on literacy increase and, as a result, also on a book demand, which led to the expansion of scribes’ work field. The later invention of the printing, by Gutenberg, in 1436, and the paper, in 1440, allowed the reproduction of books in a scale infinitely superior in comparison with the known scale then.

The ease of reproduction, the literacy of a larger number of people and a more intense and diverse literary production lead to a period of cultural hatching – the Renaissance – and, concomitantly, to a cultural industry, in which stood out printers and sellers books.

This new economic opportunity, which enabled a commercial-scale reproduction and distribution of books, led to the emergence of the first invention privileges, granted, exclusively, to the Venetian Republic editors. The privileges granted by the Crown to the booksellers are the first specific legal setting for the protection of the rights of creation, thus protecting them from the competition of others, guaranteeing them a monopoly and ensuring the development and sustenance of local editors, with positive consequences for the Kingdom, grantor of the privilege. Another very relevant factor that drove the granting of privileges is its political function, which main objective was to control what was published and read, setting a limitation – a censorship – to the content that was produced and put into circulation.

The changes brought by the printing press and movable types, paper, literacy and the possibilities that were created can be compared to the changes that occurred due to the replacement of analogue by digital technology, from the 1980s. But there are some differences that help to contextualize the challenges posed to the regulation of copyright in our time.

The main thing is that, then, the emergence of support for the creations whose reproduction and distribution were economically viable enabled the organization of a cultural industry that was sustained by the control of the production and circulation of the media, where literary creations were inserted. On the other hand, the revolution of digital technologies of communication and information leads to the dematerialization of the support, dissipating, as a result, the control in which the cultural industry has sustained for five centuries.

As in other times, the new context created an industry’s demand for an upgrade on the legislation that regulates the cultural market, in order to ensure the continuity of the legal control on the sector’s economic flows, in an environment in which the physical support is no longer necessary. This regulatory review, as at other times in the history of technological diffusion, aimed to expand the scope of protection with the expansion of its object, gradual extension of deadlines, reduction of limitations.

In the international scenery, these changes are symbolized by the TRIPS Agreement, OMC, and the “Copyright Treaty” and the “Performances and Phonogram Treaty”, OMPI. Nationally, this attempt to ensure the continuity of the control of production, reproduction, circulation and use of creations conformed the Law number 9.610 from 1998.

The elaboration of the legal text, normative, is only a first step in the process of consolidating the social norm, which is still undergoing though a dispute about their meaning, scope, effectiveness and, mainly, efficiency in the social shaping of desired behaviors. But, this time, the established cultural industry had not counted on the complacency of society that, in many ways, remains resisting the implementation of legislative commands.

The acceptance of these exclusive rights and their scope had never been peaceful, but the social opposition had never reached the current level. What has changed in our time that allowed a massive and widespread resistance to the normative political structure negotiated by industry? To answer this question is the challenge that is put to all researchers, professionals and activists. But, because of its complexity and implications, the question can only be faced satisfactorily in a collective way, so what follows is a brief illustration of a hypothesis, an explanation of the possible reasons and justification of social resistance to digital control.

The penetrability of technology, the network communication – by all and for all-, the ease and cheapness of reproduction and dissemination of works object of protection, together with the new possibilities of creation and use allowed the social and cultural ownership of these assets, regardless of the desire of industry and beyond their ability to control.

The dematerialization of support and digitization of works resulted in a wide availability and access to previously unthought cultural content, in direct conflict with the normative text built by and for the consolidated industry. Attempts to perpetuate control are unsatisfactory and, little by little, fail.

At the same time, we witnessed, from the last years of the last century, the revival of a range of sleeping rights, the cultural rights, in particular the right of access to culture. Predicted in the Human Rights Declaration of 1948 and the Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights of 1966, besides the Inter-American Human Rights Convention, remained inert for decades, without radiate its effects on goods of cultural nature protected by copyright.
The perception and social resistance to entrapment of these goods arise from materialization of access, made possible by mass digitization and availability of works, shaping and consolidating the demand for the realization of a right previously not widely envisioned.

Rights do not grow on trees, they are constructions derived from social demands that find their political paths in the legislative process or in judicial recognition, but whose delivery always depends on the substantial voluntary acceptance of its command by groups and individuals to whom they are intended.

The political and economic power was enough to build a new international legal framework and also develop national standards intended to perpetuate the control achieved over the physical media in a new technological context.

However, the new forms of production, reproduction, dissemination and use of creations, that were made possible in this new context, enabled the empowering of citizens, seen, then, only as recipients of cultural goods, which started to demand the realization of the right of access to culture, opposing the wishes of industry.

We are, today, witnessing a situation where, contradictorily, formal prohibition coexists with large material access, in a clear scenario of social delegitimation of the legal text. The composition of these divergent demands with a large emerging picture of emerging rights is the challenge that arises for two decades.