On the occasion of CREATe (the UK Copyright & Creative Economy Centre) turning ten this year, it organized a two-day Conference in October celebrating its project ‘Copyright Evidence’, a digital resource containing empirical research conducted in various industries. The theme of the Conference was the ‘21 for 2021 Project’, which involved experts reviewing the evidence available on Copyright Evidence, each focusing on a specific copyright issue and exploring potential solutions. The event saw the coming together of some of the brightest minds in the field of Intellectual Property to share their insights. The discussions were divided into five propositions, each having subject experts and chairpersons from diverse backgrounds and commentators from ReCreatingEurope. The Glasgow University Intellectual Property Society members (the GU-IPS) had the excellent opportunity of attending this Conference and interacting with the panel members and other CREATe members.
Proposition 1: Copyright ensures that creators get fairly paid and recognized
Ruth Towse, Ula Furgał, Luke McDonagh, Joshua Yuvaraj [and Rebecca Giblin],
ReCreating commentator: Joost Poort
Chair: Tanya Aplin, King’s College London
Ruth Towse sparked a discussion about the concept of fair payment and what is ‘fair’. She was of the view that royalty income does not support the notion that copyright ensures creators get paid fairly. Ula Furgał shed some light on the journalists’ perspective on fair use. She studied the Evidence Wiki and concluded that there is limited information about authors in the journalism sector. According to her, creators and authors have a personal interest in their work as opposed to journalists who do not see themselves as ‘creators.’ She believes there is room for research on the position of journalists as creators. Luke McDonagh made certain revelations regarding the issue of moral rights and economic rights. He opined that there is no way to distinguish the two rights categories. Talking about the moral right of attribution, he voiced concerns about credit and ownership in the theatrical context. For instance, the original cast of ‘Hamilton’ negotiated to gain a percentage of the profits as recognition instead of being accredited for their work, thus showing a link between payment and recognition. Joshua Yuvraj spoke about the reversion rights of the copyright holder. There are principally two ways rights can revert: contracts and statutes. The issue with contracts, according to him, is accessing the data. Furthermore, many jurisdictions have included or contemplated including some form of reversion rights in their legislations (for example, Article 22 of the 2019 EU Directive on Copyright in the Digital Single Market). Still, there is room for exploration and investigation.
Commentator Joost Poort brought up some vital points which sparked a further discussion about how journalism is more than mere entertainment, how to use moral rights to leverage revenues, and how to define availability and marketing in a digital world.
Proposition 2: Stronger and longer copyright protection increases creative and scholarly output
Speakers: Paul Heald, Martin Kretschmer, Andrea Wallace, Leonhard Dobusch and Konstantin Hondros, Innsbruck & Duisburg-Essen
ReCreating commentator(s): Roberto Caso/Giulia Dore/Pinar Oruç
Chair: Fred Saunderson, National Library of Scotland
The focus of Paul Heald’s short presentation was the issue of duration. He contemplated whether any evidence points out the problematic nature of the duration of copyright protection and, if so, what legislative choices can be made. He remarked that the longer the protection period, the more difficult it will be to negotiate with the author and access the work. Immediately after that, the floor was given to Martin Kretschmer, who spoke about non-use. He noted that copyright policy and law are dominated by the idea that only a tiny part of the copyright world can be considered valuable in terms of revenues. Subsequently, Konstantin Hondros presented his thoughts on open licensing. He reflected upon the meaning of ‘openness’ and commented that the word has a variety of meanings. He further expanded upon the concepts of Permissive Openness, Viral Openness and Restrictive Openness.
Commentators Giulia Dore and Pinar Oruç reported some of the considerations they stumbled upon during their research on digital cultural heritage and the challenges digitalization has opened.
Proposition 3: Copyright enforcement measures are effective in regulating infringing behaviors
Speakers: Matthew Sag [and Pamela Samuelson], Joost Poort, Kris Erickson, Christian Peukert and Margaritha Windisch
ReCreating commentator: Christian Katzenbach
Chair: Guido Noto La Diega
Matthew Sag covered the perspective of copyright litigation. He referred to his and Pamela Samuelson’s article, which states that it has become more difficult to obtain copyright injunctions in the aftermath of the United States Supreme Court’s decision in eBay v. MercExchange. Joost Poort then addressed the impact of online piracy on legal sales, relevant regulatory measures and how the industry should respond. After outlining that the negative effects of online piracy (substitution effect) go hand in hand with positive effects (sampling effect), he then addressed the most direct way of regulating online piracy: shutting down platforms/websites that host illegal content and resorting to an alternative approach where access to infringing websites would be blocked. He then concluded that due to the high likelihood of a re-emergence of these websites and the possibility of circumventing access restrictions, the aim should not be eradicating such platforms. Following, Kristofer Erickson spoke about issues regarding the ‘notice-and-takedown’ system of tackling infringements. He concluded that rightsholders have used the system effectively to enforce their copyrights, which has been significantly accelerated using automated systems since 2012. Lastly, Christian Peukert and Margaritha Windisch presented the evolution of copyright in the digital era regarding business models and (private) institutions, focusing on current and potential challenges. They observed how digitalization has led to a de facto weakening of the copyright system.
Proposition 4: Copyright works similarly in all creative industries
Speakers: Giorgio Fazio, Magali Eben, Kenny Barr, Raffaele Danna, [Arianna Martinelli and Alessandro Nuvolari]
ReCreating commentator: Eneli Kindsiko
Chair: Gillian Doyle, CCPR Glasgow
Giorgio Fazio spoke about the trade-related aspects and offered an economics-related perspective on international trade. Among the creative industries, non-tariff barriers exist, including differences in legislation and Intellectual Property Rights. There is scope for development in international creative trade, but limited evidence is available. Then, Magali Eben examined whether there is empirical evidence about how copyright law impacts the competitive market. Like Giorgio, she believed there was little evidence examining the intersection between copyright law and competition law. She commented on how competition law hesitates to intervene with exclusive rights granted by Intellectual Property Law. Next, Kenny Barr spoke about the creative industries, particularly in reference to music and television. On studying the Copyright Evidence Wiki, he concluded that broader literature is available for the music industry compared to television. Fourthly, Raffaele Danna talked about negative Intellectual Property Spaces. The existing literature on the subject investigates how innovation and creativity thrive outside the limits of the so-called ‘formal’ Intellectual Property Law. He spoke about how certain sectors, such as the fashion industry, thrive because copying is not policed.
Commentator Eneli Kindsiko shared some interesting insights about how linguistic asymmetry comes into play while stealing someone’s work. She also highlighted the necessity for fine-tuning copyright protection.
Proposition 5: Users’ interests are accounted for within the copyright regime
Speakers: Carys Craig, Bartolomeo Meletti, Thomas Margoni, Amy Thomas
ReCreating commentator: Peter Mezei
Chair: Luis Porangaba
First, Thomas Margoni discussed his research results on computational use, especially Text and Data Mining. He said the US framework on this issue is much broader than the EU and the UK approaches, while the People’s Republic of China has a narrowly constructed sanction. Due to differing technical and legal perspectives, there is a gap in how copyright regulation has been developed. Second, Carys Craig delved into research on gender and copyright. Her works focus on bringing critical feminist theories to ponder on substantive equality and how these ideas might influence the development of copyright law and produce a more inclusive copyright system. There were five studies in the Copyright Evidence database that were specially designed to assess the implications of gender on copyright; most of them investigated infringement issues. She argued women have more socialized respect for copyright law and there is a gender difference in understanding copyright law. She asserted that, though we do not need to better educate women about copyright, we’d better evaluate the copyright system by responding to gender assumptions. Third, Bartolomeo Meletti discussed international overviews and comparisons of copyright exceptions. He thought the primary debate is whether we should have an open-ended approach like the US or a closed-ended framework like the EU or UK. Fourth, Amy Thomas elaborated on platforms and user-generated content. She stressed the importance of educating online users on their rights and duties in the digital and creative economy. She highlighted the need for balanced platforms for safe and fair use, not those in which online users/creators are powerless.
Commentator Peter Mezei remarked on the current progress in copyright research. He agreed that the Text and Data Mining legislation is restrictive and some groups, such as women and disabled persons, are excluded from copyright protection. Moreover, he pondered how the term ‘users’ must be defined, which would differ depending on the context.
The two-day event brought up some intellectually stimulating thoughts surrounding the impact of copyright law in different arenas, along with evidence having intriguing results. The observations made by the subject experts leave one to wonder about the relevance and effectiveness of copyright law today, especially in creative industries.