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Elena Cooper and Sheona Burrow will present their joint paper ‘Photography, Copyright and the IP Enterprise Court in Historical Perspective’ as part of the CREATe Studio Series on December 7th 2016.

CREATe are delighted to announce an additional research presentation this term. Sheona Burrow (PhD candidate, CREATe) and Dr Elena Cooper (Research Fellow, CREATe) will present a joint paper about the enforcement of copyright in photographs, today and historically, and what this means about the nature of copyright (remuneration and/or control) and the changing relation through time of copyright law and the bureaucratisation of copyright exploitation. A full abstract is provided below.

The talk takes place at 2.30pm-3.20pm on 7th December 2016 in the CREATe Hub, Level 4, 10 The Square, University of Glasgow, G12 8QQ. Those intending to attend should contact Dr Elena Cooper (elena.cooper@glasgow.ac.uk) for a copy of the draft paper.

The talk complements the existing CREATe PhD Developmental Workshop scheduled for 4pm-6pm on 7th December, also in the CREATe Hub.

Photographic Copyright and the IP Enterprise Court in Historical Perspective: Remuneration, Control and the Bureaucratisation of Copyright Law

Abstract: A central aspect of intellectual property protection is the rights-owner’s right to authorise or prohibit infringing uses of the protected subject matter. The right to authorise or prohibit is central to the status of intellectual property as property: it provides the rights-owner with control over infringing uses, as opposed to the mere right to be remunerated for those uses. This article challenges the primacy of the assumption that intellectual property concerns control in all cases through an in-depth case study analysing of the enforcement of copyright in photographs both today and historically.

Bringing into conversation the unpublished findings from two separate original research projects, each by one co-author –a rare empirical investigation into enforcement in the Intellectual Property Enterprise Court Small Claims Track (a specialist Court dealing with IP disputes under £10,000, established in 2012) conducted by Sheona Burrow and the first longitudinal study of artistic copyright in the nineteenth and early twentieth centuries by Elena Cooper – this article reveals photographic copyright to be utilised in certain sectors as a longstanding right to remuneration not control. While noting parallels between past and present, in the attempts by photographers to stabilise a right to remuneration in environments facilitated by new technology  – the internet today and the illustrated press in the past – we argue that a broad historical vantage point also enables us more critically to assess what is different about the nature of photographic copyright enforcement today. In charting changes in the relationship between copyright law and the bureaucratisation of copyright exploitation (through picture libraries) through time, our collaboration draws attention to the manner in which photographic copyright in the IPEC Small Claims Track becomes imbued with bureaucratisation. Existing scholarship has characterised bureaucratisation as involving the ‘simulation’ of property – ‘a representation once removed’ from copyright law itself (Streeter, Broadcast Copyright, 10 Cardozo Arts & Ent LJ 567, 589); yet in the IPEC Small Claims Track, bureaucratisation becomes an integral part of copyright’s legal reality, through the judicial application of certain bureaucratic standards in court decisions. This, in turn, has implications for the nature of copyright: in this context, copyright exhibits features of a liability rule, rather than a property right concerned with control. The article concludes by considering the implications of the case study for policy makers; that rights-owners, in certain sectors, have long utilised copyright as a right to remuneration, not control, highlights the need for a more nuanced analysis of the interests of copyright authors, countering assumptions about the centrality of control to the category of copyright in all cases.

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