Delineating and Promoting an Online 'Legal Offer': A Proper Task for Copyright Legislation?

• Author: Anne-Catherine Lorrain
• Position: PhD Candidate at University Paris-Sud 11 (France)
• Pages: 116-125

2012

Anne-Catherine Lorrain

116

2

A. Introduction

1 Where copyright regulation and discourse target il-

legal content as being the main cause of wide-scale

online copyright infringement, the development of

legal content is often presented as the best solution

to turn the tide. Indeed, what better alternative to

illegal content than legal content? However, this see-

mingly simple pattern is far from being easy. On the

contrary, those in charge of identifying what is legal

and what is illegal should identify the questions ari-

sing from such an approach as perhaps proving to be

too Manichean. The legislator has tackled the issue,

adopting a questionable method opposing “legal”

versus “illegal” digital content and related services

that lets us predict some of the negative consequen-

ces for the development of the cultural content di-

gital market.

2

This questioning is all the more relevant when the le-

gislator is attempting not only to promote but also to

delineate so-called “legal offers” of copyrighted on-

line content. In doing so, the copyright legislator is

taking the risk of departing from his role while enc-

roaching upon digital market development. This pa-

per proposes to question the “legal” rhetoric used in

such legislation as it has developed in some recent



Delineating and Promoting an

Online “Legal Offer”: A Proper Task

for Copyright Legislation?

How Efforts to Tackle Illegal File-Sharing Risk Creating Legal

Uncertainty in the Cultural Content Digital Market

by Anne-Catherine Lorrain, Paris

PhD Candidate at University Paris-Sud 11 (France); Guest Researcher at the Max Planck Institute on Intellectual

Property and Competition Law, Munich (Germany).

© 2012 Anne-Catherine Lorrain

Everybody may disseminate this ar ticle by electronic means a nd make it available for download under the terms and

conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8 .

This article may also b e used under the Creative Commons Attribution-ShareA like 3.0 Unported License, available at h t t p : //

creativecommons.org/licenses/by-sa/3.0/.

Recommended citation: Anne- Catherine Lorrain, Delineating and Pr omoting an Online “Legal Offer ”: A Proper Task for

Copyright Legislation? , 3 (2012) JIPITEC 116, para. 1.

Keywords: Copyright, Enforcement, Regulation, File-sharing, Graduated Response, HADOPI Law, Digital market,

Legal offer.

Abstract: Legislations tackling the issue of il-

legal downloading of copyrighted content, notably

those enabling so-called “graduated response” mech-

anisms, often present and promote the idea of “legal

offers”, designed to encourage consumers to acquire

cultural content legally, as the positive counterpart to

their sanctioning provisions. The paper argues that

such legal rationales are actually underpinned by

ambiguous concepts, bearing underestimated con-

sequences on both practical and theoretical levels.

The legislative promotion for the development of so-

called “legal” services instills uncertainty in the online

market place, thereby affecting online business prac-

tices but also the core tenets of copyright law.