Émergence de normes dans les systèmes économiques et sociaux d’oeuvres numériques protégées par droit d’auteur

Caught in the perfect storm formed by technological revolutions, globalization and lobbying by special interest groups, copyright governs the economic and the social systems of protected works. The main objective of this doctoral dissertation is to survey the norms, which emerge from the digital markets and social systems where libraries are present. A secondary goal entails theorizing the « border » between licensing and exceptions to copyright, namely fair dealings. Our conceptual framework is centered on users and uses of protected works. The first part of our dissertation deals with our object of study: digital copyrighted works. We use Law and Economics (also called economic analysis of law) to articulate two axioms inherent to the economic nature of digital protected works. On the one hand, the economic nature of a digital protected work shifts from a public good to a private good. We call this reality the quantum theory of the digital protected work. On the other hand, a digital work shifts from one state to the other by following a series of means set out in copyright legislature. These include assignments, licenses, limitations, exceptions and violations. Ordering these by the amount of risk generated by social use, we posit that they form a consent continuum, where the risk is inversely proportional to the consent of the rightholder. The second part of our thesis explores parties to the legal system: social agents using digital copyrighted works. We add to our conceptual framework sociological theories of law in order to determine how social systems may generate their own legal systems. We use new social theories of law, such as network law, risk management and contractual internormativity. We posit a socio-economic analytical framework bound by our objects of study, copyrighted works, and social agents. We form a work-user matrix, whereby homogenous groups of copyrighted works and users are combined in a series of cells defined by their legal framework. The third and final part deals with the legal framework which emerges from a particular social system, that of academic libraries acting in unison through consortia. We base our analysis on the mechanisation and computerization of private ordering to analyse the normative content of a class of access licences to digital copyrighted works. The licensing metadata represents the normative content and the licence data allows us to observe the emergence of norms. We conclude that the activities which lead to the private ordering of access rules in academic libraries in Québec allow for the emergence of norms in the economic and social systems of digital copyrighted works. In addition, we confirm that licensing occurs despite the myriad of exceptions to copyright recently enacted by the legislator. We believe that this is a case where institutions practice reflects the social contract of libraries and transcends the direct order established by law.

Keyphrases: Markets of digital copyrighted works, Academic libraries, Copyright, Economic aspects of copyrighted works, Social systems, Sociology of law, Network law theory, Licensing, Librarianship