Professor Lionel Bently at the University of Glasgow
This report is being published together with the related CREATe Working Paper 2020/8 – Copyright and Quotation in Film and TV – by Professor Lionel Bently. The paper Copyright and Quotation in Film and TV is an edited transcript of the keynote delivered by Bently at Learning on Screen Members’ Day: Copyright and Creative Reuse, 8th December 2018, RSA House, London, and updated to reflect changes in the law as of 24 April 2020. You can access the paper here.
On 12th February 2020, I had the pleasure to attend the excellent CREATe Public Lecture Copyright and Quotation: Beyond the Textual Paradigm by Professor Lionel Bently (University of Cambridge). I was particularly interested in this lecture as I am currently conducting a research project aimed exploring the role that creative and cultural practice can play in defining legal standards such as fairness, using the quotation exception as a lens of investigation.
The Berne Convention requires its 188 participants to recognise the quotation right. Article 10(1) states:
The UK government claims that Brexit will open up “significant opportunities” for the UK. Under their latest three word strapline, Check, Change, Go, a new campaign aims to prepare the UK for the end of the “transition period” on 31 December 2020. In line with messaging guidance, the word Brexit is not mentioned once. Rather: “The campaign will ensure we are all ready to seize the opportunities available for the first time in nearly fifty years as a fully sovereign United Kingdom.”
What is the room for maneuvre for the UK as a sovereign country? And what will the end of the transition period imply for the creative industries? In this presentation, I will discuss three aspects relating to intellectual property law, in the context of the wider legal order.
(1) The effects of the UK falling out of the single market;
(2) future regulatory competition with the EU and other trading partners; and
Guest post by Lee Edwards, Associate Professor at LSE, and Giles Moss, Associate Professor at University of Leeds.
In just under a year’s time, the Copyright in the Digital Single Market directive (CDSM) should be fully implemented in EU member states. The Directive was contested at its inception, throughout its development, and once it was passed into law. While the text is now set, its interpretation at the national level remains the purview of individual states, and it is by no means guaranteed that the controversy marking its journey thus far, will abate.
Map via CREATe implementation resource page
Member states have made variable progress. As the CREATe implementation resource shows, some countries have tabled draft implementation bills, some have opened the bills up to stakeholder consultation, and some have not yet addressed the issue. Where consultation is part of the process, approaches vary widely. Ireland, for example, has consulted prior to formulating a draft bill by issuing a set of questions to the public, but responses are not visible and no report on the consultation has been issued as yet. In Slovenia, consultation was also carried out before drafting a bill, but without any questions to guide submissions, potentially limiting the relevance of responses. In contrast, Croatia invited public comment on a drafted bill via an already-established website where consultations are regularly promoted, and all comments are visible. Other countries have completely bypassed any kind of public consultation. In a classic example of copyright policymaking engaging primarily with its ‘usual suspects’, Sweden, Belgium, Lithuania and Slovakia have all convened discussion with a limited group of invited stakeholders and the outcomes of discussions are not transparent. In Sweden, adequate representation of user organisations was achieved only after NGOs challenged the government’s approach; it is not clear how much influence they will have when other stakeholders enjoy more established relationships with policymakers. In Belgium, leaked documents, rather than government initiatives, have been the source of public awareness while in Lithuania and Slovakia the outcomes of discussions on implementation have not been communicated to the public. Clearly, no matter what the apparently democratic structures of society suggest, across the EU the public right to influence an enormously significant policy is both limited and fragile.
Focussing on the UK in the late-nineteenth and early twentieth centuries (1850-1911), an important period in the making of modern copyright, the book explores the ways in which the history of copyright relating to the visual arts (painting, engraving, photography) differs from existing accounts of copyright history concerning the protection of books and literary works. Art and Modern Copyright draws on meticulous original archival work, conducted over the course of a decade, significantly expanding a doctoral thesis supervised by Professor Lionel Bently at the University of Cambridge, which was awarded a Yorke Prize by the Faculty of Law, Cambridge in 2011. As well as exploring the connections between copyright history and the scholarship of art historians, the book reflects on how the past can help us think critically about copyright today.
On 18th June 2020, CREATe researchers Bartolomeo Meletti and Thomas Margoni presented at the SCURL online copyright conference. The online event – organised by Greg Walters (University of Glasgow) and chaired by Jeanette Castle (University of the West of Scotland) – brought together around 50 information professionals from the Scottish Confederation of University & Research Library (SCURL).This is the second of two reports – the first can be found here.
Text and Data Mining – original illustration by Davide Bonazzi for CopyrightUser.org
The subject of my presentation was the new EU Copyright in the Digital Single MarketDirective (CDSMD) and its impact on post-Brexit UK researchers. After a brief overview of the relevant provisions of the Directive, I focused on Arts. 3 and 4 CDSMD, which introduce into EU copyright law two distinct Text and Data Mining (TDM) exceptions. The presentation also discussed how these articles will relate to Sec. 29A UK CDPA 1988 which, back in 2014, introduced an exemption for acts of non-commercial TDM in the UK. It was clarified at the outset that the provisions of the new CSDMD will most likely not be implemented in the UK in the foreseeable future. In fact, on the one hand, the UK will not be required to do so, since the term to implement the new EU rules (June 2021) is placed after the end of the transition period (December 2020), while on the other hand the UK Government has declared that there is no plan to voluntarily adopt those rules.
On 18 June 2020, CREATe researchers Bartolomeo Meletti and Thomas Margoni presented at the SCURL online copyright conference. The online event – organised by Greg Walters (University of Glasgow) and chaired by Jeanette Castle (University of the West of Scotland) – brought together around 50 information professionals from the Scottish Confederation of University & Research Library (SCURL).This is the first of two reports, the second is available here.
Education – original illustration by Davide Bonazzi for CopyrightUser.org
The conference kicked off with a presentation by Chris Morrison (University of Kent) and Jane Secker (City, University of London) on the topic of copyright literacy in a time of crisis. Chris and Jane reported on the webinars on ‘copyright and online learning during the COVID-19 pandemic’ they have been running on a weekly basis since 20th March, and highlighted the important role played by communities such as LIS-Copyseek in helping academic librarians tackle copyright issues confidently.
Following that, I delivered a presentation on Copyright and Creative Reuse, using CopyrightUser.org resources to explore copyright duration and copyright exceptions that enable the use of protected materials for educational purposes. In particular, focussing on Sections 32 and 34 of the Copyright, Designs and Patents Act 1988 (CDPA), two provisions which academics and HE staff can potentially rely on to use protected materials in online teaching.
Leighton Andrews’ Working Paper addresses the unfinished process of regulating Facebook, writes Philip Schlesinger. His analysis provides us with a compendious and up to date account of how, from a range of perspectives, UK regulators have been approaching this complex task.
Despite this specific focus, Andrews’ account has been shaped by his acute sense of how the question of platform regulation is playing out internationally as well as nationally. His study, which has the advantage of providing specific detail along with drawing out the general implications of the case in question, is deeply informed by current debate in regulation studies. It is also very sensitive to the power plays that often make the intended objects of regulation so refractory. Major players are also themselves inclined to engage in regulatory politics, both within and across jurisdictions.
In the course of offering the reader his detailed insights into the various perspectives presently shaping the debate over regulation, Leighton Andrews conceptualises today’s mood for intervention as working itself out through an incremental ‘sense-making’ process, a putting-out of feelers and a flying of trial balloons about how best to handle economic, political, cultural and social questions of increasing urgency.
Fiesler and Bruckman (2019) investigate ‘Creativity, Copyright and Close-Knit Communities’ in a study of social norms in online communities. Through interviews with fan-creators from Tumblr and LiveJournal, they uncover three consistent norms in fandom: attribution (which remains integral despite having no legal basis in the US); non-commerciality (with some inexplicable differences between e.g. fan art and fan fiction), and; secrecy (which plays a key role in shielding online communities from legal action). Continue reading →
Posted inWiki|Comments Off on Copyright Evidence Wiki June 2020 Round-Up
Today, CREATe publishes ‘Improving Deliberation, Improving Copyright’, authored by Lee Edwards and Giles Moss. The Report can be found here, and the Toolkit which forms the companion piece, can be found here. This is highly innovative research with the potential to bring sustained change to practice. We are delighted to include the paper in the CREATe Working Paper series.
Traditionally, copyright consultations have taken place in a landscape characterised by uneven resources, knowledge and expertise among stakeholders. The method employed by the researchers was based on collaboration with copyright stakeholders, other media stakeholders, and members of the public. This has led to the development of a new approach to consultations that addresses some of the limitations of copyright consultations in practice and will be of use to consultation exercises of all kinds.
CREATe has submitted today evidence to the parliamentary inquiry into ‘The future of public service broadcasting’ conducted by the Digital, Culture, Media and Sport Committee. Our response focuses on Question 1 of the call:
Regulation: Are the current regulations and obligations placed on PSBs, in return for benefits such as prominence and public funding, proportionate? What (if any regulation) should be introduced for SVoDs and other streaming services?
We address whether current obligations placed on public service broadcasters (PSBs) with respect to the assignability and licensing of intellectual property rights from independent producers (so-called ‘terms of trade’) should be introduced for streaming services.
We offer evidence by
– reviewing historical precedent for limiting the assignability of intellectual property rights;
– assessing, in particular, the empirical effects of the introduction of ‘terms if trade’ following the Communications Act 2003;
– evaluating current exploitation practices of streaming services.
Wefindthat
– intervening on the assignability and licensing of intellectual property rights is a powerful tool, shaping investment decisions and industry structure, with strong cultural effects (for example on diversity);
– the introduction of ‘terms of trade’ following the Communications Act 2003 led to a period of investment and growth of the UK screen production sector, in particular accelerating international exploitation;
– the introduction of ‘terms of trade’ following the Communications Act 2003 led to a number of unintended consequences, in particular the consolidation of the independent production sector and the acquisition of independent production houses by multinational firms.
Werecommendthat
– corrective regulatory interventions with respect to the assignability and licensing of intellectual property rights from independent producers are required following the entry of streaming services as commissioners into the sector;
– a thorough review of the current production system be undertaken before ‘terms of trade’ type interventions are applied to streaming services.
The UK government claims that Brexit will open up “significant opportunities” for the UK. Under their latest three word strapline, 
