Some of our CREATe PGRs (L-R): Jie Liu, Zihao Li, Methinee Suwannakit and Jiarong Zhang (pre-social distancing!)
On 31 July 2020 CREATe PGRs participated in the University of Glasgow School of Law virtual PGR ‘Work in Progress’ session, sharing their updates under the Law and Technology (Methinee Suwannakit and Zihao Li), Social, Economic and Cultural Rights Recognition (Jiarong Zhang) and Copyright (Janet Burgess and Jie Liu) panels. Amy Thomas (RTA, Copyright Evidence Wiki Sub-Editor), one of the co-organisers of the PGR workshop, also chaired the Q&A sessions for the Social, Economic and Cultural Rights Recognition and Copyright sessions. This blog provides a summary of the PGR presentations, with some reflections on their experiences, valued feedback and future research directions.
Law and Technology
Beginning the session, the Law and Technology panel approached legal issues in the digital environment from multiple perspectives, including finance, tort and privacy law (ending in a topical discussion on blockchain and COVID contact tracing apps). Continue reading →
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A public consultation submission by CREATe and IPRIA
The tension between news media and digital platforms has been growing for years. While going through financial difficulties caused by the adaptation to the new digital reality, news media organisations strongly object to platforms using their content for free. The EU has already made its decision on how to address this tension: in April 2019 it adopted a neighbouring right for press publishers as a part of the new Copyright Directive. Australia is currently in the process of shaping its approach, but we already know it will be different to the European, with the Morrison Government taking a course on competition rather than copyright regulation.
On 31 July, the Australian Competition and Consumer Commission (ACCC) put forward a Draft Media Bargaining Code, opening it for public consultation. CREATe together with the Intellectual Property Research Institute of Australia (IPRIA) has filed a joint submission to the consultation. The submission, prepared by Ula Furgał (CREATe), Rebecca Giblin (University of Melbourne) and Julie Clarke (University of Melbourne) recommends amendments and clarifications to the Draft Code’s text on the following issues:
guarantee of remuneration to journalists;
criteria for becoming a registered news business, especially a revenue test;
minimum standards, particularly requirements posed by section 52M of the Code;
actions covered by the Code and the concept of “making available of new content”;
possibility to opt out from having news content included in a platform’s service and its effects on users;
the non-discrimination rule and the must carry obligation it implies as sole legal basis for bargaining;
one-size-fits-all approach which does not account for differences between services Code covers.
The full text of the submission can be accessed here.
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CREATe presents the ninth entry into our series of working papers released in 2020: “After the post-public sphere” by Prof. Philip Schlesinger (Professor in Cultural Theory, Centre for Cultural Policy Research and Deputy Director of CREATe, University of Glasgow).
Sometimes, the purport of what you’re writing becomes increasingly clear in the process of composition, writes Philip Schlesinger. That has been the case for this Working Paper. I began by revisiting the public sphere, a topic I had set aside for well over a decade. In the present paper, I argue that in capitalist democracies we find ourselves in a transitional phase of indeterminate duration, in an increasingly significant break with earlier conceptions of the public sphere. The best way of describing the present state of affairs, therefore, is as an unstable ‘post-public sphere’. To name something ‘post’-this or -that often reflects our perplexity rather than offering a good analytical solution to a problem. Although we know a given social formation has largely disintegrated, we don’t yet know what the future will bring, although there may well be intimations.
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.
The UK government claims that Brexit will open up “significant opportunities” for the UK. Under their latest three word strapline, 
