Framing Standards, Mobilizing Users: Copyright Versus Fair Use in Transnational Regulation

Following the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) intellectual property rights, and more specifically copyright, have become the subject of highly politicized conflicts. In this paper we analyze how these conflicts shifted from the political arena to private standard-setting sites, where two opposing coalitions of actors pursued competing initiatives – an industry coalition which aimed at enforcing copyright protection through Digital Rights Management and an emerging coalition of civil society actors which sought to develop a digital commons based on copyleft licenses. Paradoxically, the industry coalition, which had very successfully lobbied international organizations, ran into trouble developing and enforcing private regulation in the market place, while the civil society coalition proved to be more effective in the market than in the political sphere. The findings of our analysis indicate that the strategic use of organizational forms and collective action frames can be more decisive for the mobilization of users than material resources, and that the success of collective action frames depends on their compatibility with user practices. Based on the argument that regime shifting from intergovernmental to private governance can open up new and favorable spaces for weak actors to experiment with alternative forms of regulation, the paper contributes to the literature on the politics of regime complexity. The paper furthermore highlights the importance of studying non-elite actors and their day-to-day practices to gain a better understanding of changes within the international political economy