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6 J. Int'l Com. L. & Tech. 207 (2011)
Regulating File Sharing: Open Regulations for an Open Internet

handle is hein.journals/jcolate6 and id is 207 raw text is: JICLT
Regulating File Sharing: Open Regulation for an Open Internet*
Michael Filby
School of Law
University of Leicester
mrfl 6le.ac.uk
Abstract. Regulators have a choice of approaches available to them in regulating digital
copyright issues that lie on a scale between restrictiveness and openness. In a world in which the
regulator seems to exclusively rely on entrenching a restrictive approach, this paper questions
whether the long-forgotten open approach is worth reconsidering in the digital age. The ideal of
cyber socialism is examined in the context of the roots and structure of cyberspace and its state of
nature, and digital distribution models operating outside of the existing law are considered. The
Creative Commons licenses are evaluated for their suitability in opening the current one-note
regulatory regime.
1. Introduction
In a world in which copyright regulation is becoming ever more protectionist and restrictive in nature, it is easy
to forget that there is more than one approach available to be taken. The Copyright, Designs and Patents Act
1988 (CDPA) presently offers a framework enforcing a system of copyright protections that apply a number of
key restrictions automatically for a generation-encompassing term ensconced in both criminal and civil sanctions
- the classic and common approach of treating knowledge as an asset more than a public resource. The
legislature has struggled to impose this regulatory regime upon the relatively youthful internet since its initial
boom, with the infringement notification procedure and technical measures of the Digital Economy Act 2010
being the latest attempt to crowbar this form of copyright protection into the digital age. But is this regulatory
approach that is traditionally used to regulate intellectual property in the physical world necessarily appropriate
to intangible content in a virtual world?
This paper seeks to answer this question by defining the more open regulatory approach at the opposite end
of the regulatory spectrum and exploring its applicability to cyberspace and the internet. Key differences
between the two regulatory approaches are identified and compared with the distinctions that exist between the
physical and virtual worlds. It is then argued that the significant overlap between the open evolution of the
internet and the philosophies of open regulation supports the widening of pure copyright regulation into a more
flexible licensing system that espouses the ideals of the Creative Commons, which will serve as a middle ground
between the competing ideologies of these two different worlds whilst taking a co-habitational view that
recognises the symbiosis between them. The Creative Commons licenses are then explained, and their primary
criticisms considered. It is concluded that the internet has created an important new way of conducting business
in association with the physical world and its traditional business models, but that the differences in its
construction and operation necessitate a form of regulation that is less restrictive than pure copyright. It is
suggested that formalisation of Creative Commons licenses as a minimum will provide a crucial regulatory
middle ground between copyright and open source that will levy fewer technical impediments upon the evolution
of the internet and the novel behaviours, norms and technologies that it is spawning.

* This article updates and greatly expands upon ideas originally discussed in M Filby, 'Together in electric dreams: cyber
socialism, utopia and the creative commons' (2008) 1 (1-2) International Journal of Private Law 94.


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