Blog by Konstantin Hondros, visiting researcher from the University of Duisburg-Essen, Germany

Research visitor looking for results to come (Image by the author)

In May 2018 I had the opportunity to visit CREATe as a research visitor. Based in Germany at the University of Duisburg-Essen and as part of the DFG-funded project “Organized Creativity”, my work focuses on influences of copyright on creation processes in music and connected regulatory uncertainties. Getting to know the University of Glasgow and CREATe as probably the most renowned research hub concerned with the intertwining of creative industries and copyright regulation, was definitely a great experience.

Since I am in the middle of my dissertation project as well as in writing working papers for my project, I spent the time in my roof office opposite the beautiful university tower tracing several threads of interest, all of them considerably benefiting from CREATe’s findings. Besides, I was able to do some additional fieldwork in and around Glasgow, getting in contact with the city’s vibrant music community, making a couple of exciting interviews and interesting observations at festivals and concerts.

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Takedown of YouTube parody videos

CREATe Director Martin Kretschmer and Kristofer Erickson (Associate Professor of Media and Communication, University of Leeds), have written a post for the Kluwer Copyright blog on EU copyright enforcement. The article explores the dramatic change to the regime that governs the liability of online intermediaries established with the E-Commerce Directive (Directive 2000/31/EC).

The full blog post can be read here.

The article on Youtube takedowns is available here, and CREATe’s resource page on EU Copyright Reform can be found here.

Bartolomeo Meletti presenting at EYE

On 27^th May 2018, I participated in a panel titled Resisting Copyright and Its Archival Implications, organised and chaired by Claudy Op den Kamp (Bournemouth University) as part of the EYE International Conference 2018 (EYE Filmmuseum, Amsterdam, 26-29 May 2018).

The panel – which included Prof Peter Jaszi (American University) and Wendy Bevan-Mogg (Bournemouth University) – explored the relationship between copyright law and found footage filmmaking, focusing on the role that copyright exceptions (EU / UK) and fair use (US) play in enabling the creative reuse of existing works. The session ended with the launch of Claudy Op den Kamp’s book The Greatest Films Never Seen: The Film Archive and the Copyright Smokescreen.

Each panelist was given a clip from a short film and had to speak for 10 minutes on the relationship between copyright law and creative practice based on that clip. Below you can find the transcript of my presentation (and slides to download), which follows on from findings from the event Copyright & Creative Reuse which was organised by CREATe and held at the BFI on 8^th December 2017, and in particular on Prof Lionel Bently’s talk.

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This is an interesting time for EU copyright law. In order to offer a comprehensive overview of a complex process, CREATe has collected various resources available here, here and here. To synthesize, it could be said that within the EU copyright reform package, which is intended to “modernise” EU copyright law, the Proposal for a Directive on copyright in the Digital Single Market stands out for its numerous provisions. Some of those have been object of a great deal of attention from academics, lawyers and citizens in general as they will significantly change the current EU copyright framework. And not necessarily in the right direction. In an opinion published today in The Conversation (here) CREATe’s Martin Kretschmer and Thomas Margoni discuss one of these provisions, dedicated to Text and Data Mining (TDM).

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Art. 3 relates to a mandatory TDM exception that would benefit research organisations acting for research purposes, for example a university researcher scanning and analysing scientific articles. However, while Art. 3 is underpinned by the right innovation policy goal, the drafting is problematic. In particular, the current wording of Art. 3:

1. limits the availability of the exception to research institutions for research purposes, thereby excluding innovative firms or journalists;
2. it does not address the backdoor of preventing text and data mining for technical reasons, which allows publishers to force licensing opportunities;
3. it only covers the right of reproduction but not the rights of distribution or communication to the public.

Therefore, whereas a TDM exception is a welcome addition to the current EU copyright framework, the current proposal is deeply problematic. There are possible compromise solutions (such as the so called “Option 4” discussed in the opinion), but there is also a more structural and conceptual mistake about copyright: copyright does not protect ideas, principles, facts and data as such, thus TDM should not be considered a copyright relevant act in the first place. [Continue reading here.]

The Journal of Intellectual Property, Information Technology and Electronic Commerce Law is publishing Kris Erickson and Martin Kretschmer’s article “This Video is Unavailable”: Analyzing Copyright Takedown of User-Generated Content on YouTube, in its issue available today. The study offers an important empirical perspective on the actual behaviour of rightholders in removing potentially infringing content. This matters as the European Union is seeking to create new obligations on platform intermediaries that may amount to default filtering of content uploaded by users.

As Erickson and Kretschmer say:

“We suggest that evolving policy on intermediary liability – for example with respect to imposing filtering systems (automatically ensuring “stay-down” of potentially infringing content) – should be carefully evaluated against evidence of actual behavior, which this study shows may differ materially from stated policy positions.”

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CREATe is encouraging questions from the GLAM (Galleries, Libraries, Archives & Museums) Sector during our #copyrighthour on Friday 25th May at 2pm (GMT+1). We are delighted to welcome copyright specialist and CREATe Industry Fellow Naomi Korn, who will be answering copyright questions and signposting useful resources for museums and cultural institutions. Naomi and her team are specialists in copyright, data protection, licensing and information law compliance.

Naomi will answer through her Twitter account @NKorn with support from CREATe (@copyrightcentre) and Copyright User (@copyrightuser). Please use the hashtag #copyrighthour in questions and comments for Naomi.

Participants in the EnDOW Final Conference

The results of the European project EnDOW: Enhancing access to 20^thCentury cultural heritage through Distributed Orphan Works clearance were presented at the European Union Intellectual Property Office (EUIPO) in Alicante on 15th May 2018. The EnDOW project – funded under Heritage Plus – has now come to an end after three years of successful research cooperation among four leading European research centres: CIPPM, Bournemouth University (Project Leader); CREATe, University of Glasgow; IViR, University of Amsterdam; and ASK, Bocconi University, Milan.

The main goal of EnDOW was to facilitate the process of right clearance for European cultural institutions engaged in digitisation of material contained in their collections. In particular, the project developed a platform – http://diligentsearch.eu/diligent-search-tool/ – to help cultural institutions digitise and make available the orphan works in their collections by outsourcing to the crowd the diligent search required by the European Directive on orphan works. In addition to the Diligent Search Tool, EnDOW’s outputs include three Reports on the diligent search requirement across 20 EU countries and on current best practices among Cultural Heritage Institutions (CHIs) when dealing with orphan works: http://diligentsearch.eu/resources/

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This new collection, with leading contributors from around the world, explores the complex, changing relations between IP and the creative industries. The Research Handbook on Intellectual Property and the Creative Industries is edited by two distinguished IP lawyers, Professors Abbe Brown (Aberdeen)  and Charlotte Waelde (Coventry).

The opening chapter is by CREATe Deputy Director Philip Schlesinger; ‘Whither the creative economy? Reflections on the European case’. The volume includes contributions from a number of CREATe researchers:

• Intellectual property and creative industries policy in the UK by Kristofer Erickson
• Intellectual property enforcement: empirical consideration of enforcement action by Jane Cornwell
• Visual Arts: Artists’ voices from the field by Smita Kheria
• Appropriating value: on the relationship between business models and intellectual property by Henning Berthold, Melinda Grewar, Shiona Chillas and Barbara Townley
• The hard sell: economics and intellectual property policy in the creative and cultural industries by Nicola Searle

For further details see: https://www.e-elgar.com/shop/research-handbook-on-intellectual-property-and-creative-industries

A new paper in the CREATe Working Paper series is now available: Photographic Copyright and the Intellectual Property Enterprise Court in Historical Perspective by Elena Cooper and Sheona Burrow. Elena Cooper is a Postdoctoral Researcher in Copyright Law, History and Policy and a Leverhulme Early Career Fellow. Sheona Burrow is Postdoctoral Research Fellow (Part time).

The paper provides an in-depth case study of the enforcement of copyright in photographs by some contemporary rights-owners: freelance professional photographers who derive income from the exploitation of photographic copyright. Referring to the theoretical framework of Guido Calabresi and A Douglas Melamed, the article reflects on the implications for the nature and function of copyright in a specific context today. It explores contemporary experience alongside the enforcement of copyright by professional photographers in the past (the late nineteenth/early twentieth centuries), noting the influence of the bureaucratisation of copyright exploitation (i.e. exploitation through picture libraries) on legal decision making in a particular forum today: the Intellectual Property Enterprise Court Small Claims Track.

The full abstract and downloadable paper can be accessed from here: Photographic Copyright and the Intellectual Property Enterprise Court in Historical Perspective