European Copyright Roundtable: How to implement new rules for online platforms?

Post by Martin Husovec and Martin Kretschmer

Article 17 Implementation Roundtable

Brussels, Thursday, 13 June 2019, 09:30 – 17:00 
University Foundation
Egmontstraat 11 rue d’Egmont
1000 Brussels, Belgium

The Digital Single Market is a widely shared aspiration. The recently adopted copyright reform is one of the EU’s central interventions to re-arrange online creative markets. The expectation is that the newly created rules will facilitate fairer attribution of value where it is due. Since the narrative behind the legislation was dramatic, the expectations are high.

However, due to political turbulences in the legislative process, the resulting text of the Directive is extremely complex. There is now a serious risk that the Member States will spend another decade debating what exactly they agreed upon in spring 2019. This risk is intensified by the fact that several Member States continue to hold strong views against the adopted legislation even after the legislative process is over. Therefore, there is a real threat that diverging national implementations will undermine legal certainty and the competitive environment in the European online space. Incompatible national implementations or regulatory “forum-shopping” for more favorable implementations most certainly would not benefit the Digital Single Market. Continue reading

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A new chapter in the history of The Game is On! – The UK IPO publishes new educational resource

Post by the authors of The Game is On! – Prof. Ronan Deazley (Queen’s University Belfast) and Bartolomeo Meletti (CREATe, University of Glasgow)

The UK Intellectual Property Office, on their educational portal Cracking Ideas, has published a new teaching resource based on The Game is On! The new resource represents the latest stage of a genuine, long-standing collaboration between university, industry and government.

The Game is On! on crackingideas.com

It was the 11 April 2014, on a train from Bournemouth to London, when the idea for The Game is On! first began to take shape. We had just attended a Public Domain Calculators workshop at Bournemouth University, organised by CIPPM as part of their annual symposium, and were travelling to London to attend the launch of the CREATe study on Unlawful File Sharing at the Stationers’ Hall. The train trip itself became a copyright event: we dubbed it ‘The Public Domain Train’. Not only did the train journey fall hard on the heels of a workshop on the public domain in Bournemouth, it also provided us with the opportunity to storyboard Copyright Bites, a series of short animated videos that explore the relationship between copyright and the public domain. The Copyright Bites were part of a suite of materials we were producing following the official launch of CopyrightUser.org at the AHRC Creative Economy Showcase event on 12 March 2014, where we also distributed the Copyright Myth-Reality Cards for the first time. In developing Copyright Bites we uncovered a shared passion for the Sherlock Holmes canon, and in doing so stumbled upon our first iteration of the great detective – Sherlock Holmes, resplendent in pink, designed by Davide Bonazzi. We had just joined an ever-growing community, formed by the countless creators who have produced new editions, adaptations and imitations of Holmes.

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OpenAIRE Research: Legal issues in Dealing with Research Data & Making your repository Open

OpenAIRE is a European H2020 funded infrastructure aimed at promoting Open Science and open scholarly communications. As the coordinator of the legal task force on copyright and data, Dr. Thomas Margoni presented a webinar on ‘Legal issues in Dealing with Research Data’ presenting three users’ guides developed to navigate the complex world of research data and licensing: ‘How do I know if my research data is protected?’; ‘How do I license my research data?’, and; ‘Can I reuse someone else’s research data?’. The webinar is recorded and available here.

In the webinar, Dr. Margoni highlighted how oftentimes when discussing data, the scientific community may speak a different language from law; in fact, there is no legal definition of what constitutes “research data”. Instead, copyright law restricts itself to defining databases, and providing protection of the structure of the database itself rather than the data therein – a concept which may seem counterintuitive to many researchers. The European context becomes even more complex as the sui generis database right applies to databases accrued with “substantial investment”, quite separately of any originality requirement. As such, even fundamental questions of data ownership are difficult. Continue reading

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Copyright Evidence Wiki May 2019 Round-Up

To view the full Wiki click here or the image above.

This is part of a series of summary posts rounding-up new entries to the Copyright Evidence Wiki (organised thematically). As part of CREATe’s workstream for the AHRC Creative Industries Policy and Evidence Centre, the Wiki catalogues empirical studies on copyright. This month, we summarise new studies on: Negative Space and Copyright and Game of Thrones.

Negative Space:

A study by Sarid (2014) details the difficulty in protecting drag queen performances with copyright, and how the community has instead come to regulate itself through “gentlewoman’s understandings” and an enforcement system of boycotts, professional isolation and humiliation for transgressors. The author suggests that part of the community’s hesitation to engage with copyright is due to the overarching message of the drag queen community itself – namely to challenge mainstream conventions (rather than codifying norms in hard law). Continue reading

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Report: BILETA Annual Conference 2019

By Methinee Suwannakit and Amy Thomas (CREATe PhD Candidates)

BILETA (The British and Irish Law Education Technology Association) was formed to promote the research and knowledge on technology law and policy. This year’s conference was held on 16-17 April 2019 at Queen’s University Belfast, with the theme ‘Back to the futures: law without frontiers?’. This posed important questions: how will legal systems engage with technological developments and anticipate future directions? How will privacy and security issues be addressed? This post focusses on highlights from the plenary sessions in IP and data protection/privacy.

Intellectual Property

Eliza Easton’s (Nesta/PEC) keynote speech on the creative industries and work of the PEC.

Eliza Easton’s (Nesta/PEC) keynote speech opened the conference with an overview of the PEC’s five areas of work, including CREATe’s leading role in ‘IP, Business Models, Access to Finance and Content Regulation’. Her speech emphasized the need for independent research to contribute to the success of the UK’s creative industries in order to address imminent policy questions: what do new and successful business models look like and how are these developed? How do we regulate the platform economy? Many of the conference plenary sessions touched on these matters.

Perhaps most notably on the subject of the platform economy, IP discussions centred on addressing the potential impact of Article 17 (Draft Article 13) of the impending Copyright Directive. From a human rights perspective, Felipe Romero Moreno (University of Hertfordshire) proposed to analyse Article 17 using the three-part test of the ECtHR; Ruth Flaherty (University of East Anglia) instead approached this from the perspective of fan communities, and how unauthorized derivative uses may be undervalued by this new provision. Continue reading

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CREATe at the Law and Technology Consortium (LTC) in Trento: The Game is On! – Lawful copying under UK copyright law

On 6-7 May 2019, I attended the first meeting of the Law and Technology Consortium (LTC), held at the University of Trento (Italy). LTC is an international and informal consortium of research centres and institutions seeking to establish a collaborative network and share scientific knowledge and expertise in the field of law and technology. Coordinated by Prof. Roberto Caso (University of Trento) and Prof. Gideon Parchomovsky (University of Pennsylvania and Hebrew University of Jerusalem), the Consortium aims to facilitate research collaboration and mutual exchange of experiences on research topics related to law and technology.

View from the University of Trento, Faculty of Law

During the first day of the meeting, I presented an idea paper titled ‘The Game is On! – Lawful copying under UK copyright law’. The paper aims to investigate how different forms of lawful copying have evolved under UK copyright law over the last few years, examining the role that creative practice can play in defining the scope of permitted acts. Following the introduction in 2014 of new fair dealing exceptions for quotation and for caricature, parody or pastiche, the scope of lawful copying within UK copyright law has expanded considerably. Before 2014, only two exceptions allowed creators to deliberately reuse protected works for their own creative and artistic purposes: criticism or review (s30 CDPA) and what is commonly referred to as ‘freedom of panorama’ (s62 CDPA, ‘Representation of certain artistic works on public display’). These exceptions offer limited artistic freedom though: criticism or review is limited by purpose (you can benefit from it only if the reason for using the protected material is genuinely for the purpose of criticism or review), whereas s62 only applies to certain types of work (buildings, sculptures, models for buildings and works of artistic craftmanship on public display) and use (it only allows making a graphic work representing the protected material, a photograph or a film of it, or making a broadcast of a visual image of it). Under the new quotation exception provided by s30(1ZA) CDPA, you can quote from any type of copyright work ‘for criticism or review or otherwise. As such, quotation is the first ever UK fair dealing exceptions that – similarly to the fair use doctrine in the US – is not limited by purpose. On the other hand, the exception for caricature, parody or pastiche (s30A CDPA) is limited by purpose, but the purpose itself, in particular pastiche, is a creative one. You can use other people’s works for the purpose of creating a pastiche of those works. With the introduction of these two fair dealing exceptions, now UK copyright law potentially allows creative practices based on the reuse of existing materials and for which the rights clearance mechanisms are not suitable or unrealistic because of the numerous, low value uses involved (e.g. appropriation art, found footage filmmaking, mash up videos, memes, among many others).

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The Copyright Licensing Agency Blog – The Fortnite Dance Controversy: Ethics of Reuse

Amy Thomas at the V&A Museum, Dundee

The Copyright Licensing Agency has published a blogpost by Amy Thomas (CREATe PhD candidate and Copyright Wiki sub-editor) discussing the Fortnite dance controversy and ethics of reuse. Following a presentation by Amy at the event “Using Other People’s Stuff” – held at the V&A Museum in Dundee on 26 March 2019 – the blog explores the limitations of copyright in regard to dance, the importance of attribution, and how the controversy relates to cultural appropriation.

The full blogpost is available here via The Copyright Licensing Agency.

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2 x Postdocs, 1 x Lecturer in IP with CREATe, University of Glasgow

Postdocs in Creative Economy – Two Posts
Lecturer in Intellectual Property Law – One Post

 

 

This is an exciting opportunity to join CREATe, the UK Copyright & Creative Economy Centre at the University of Glasgow. One of the posts will be formally liked to the Centre for Cultural Policy Research (CCPR) in the School of Culture and Creative Arts.

As part of new work for the AHRC funded Creative Industries Policy & Evidence Centre (PEC), we will appoint two postdocs for research on the platform economy (for two years in the first instance). If you are a legal scholar interested in working empirically, an economist, sociologist or management researcher who intends to develop work on regulation, or a communications scholar who is advancing innovative quantitative and qualitative digital methods, we would like to hear from you.

At the same time, a two year lectureship in Intellectual Property Law is available in the School of Law. This appointment seeks to develop additional expertise in innovation, data and patent law, with a view to broaden CREATe’s footprint within the School of Law.

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IPKat Book review: Art and Modern Copyright by CREATe’s Dr Elena Cooper

Art and Modern Copyright by CREATe’s Dr Elena CooperReaders of the IPKat will have seen the book review posted last week of ‘Art and Modern Copyright – The Contested Image’ (CUP, 2018) by CREATe’s Dr Elena Cooper, which was launched at the Victorian Picture Gallery in December last year. The IPKat praises the book as ‘the first… comprehensive study’ of copyright as it relates to the fine arts, ‘brilliantly executed’, and ‘revealing in a nuanced way the manner by which images have laboured their way into copyright law.’ The review was written by Dr Mathilde Pavis, who considers it ‘one of the favourite books I have reviewed this year’. Pavis’ review also highlights the interdisciplinary nature of Cooper’s analysis and the detailed nature of the archival work on which it is based, which are aspects commended elsewhere. Mr Justice Richard Arnold (High Court of England & Wales), writing in the Oxford Journal of IP and Practice, concludes that the ‘prodigious amount of archival research into artistic and legal sources’ results in ‘a significant contribution not only to the history of copyright but also to the history and sociology of art and the history of the second half of the long 19th century more generally’ (A Significant Contribution to Copyright History, JIPLP, 2019, 252-254, 253). Further complimentary reviews have been published in the Cambridge Law Journal (by Dr Stina Teilmann-Lock – drawing attention to the significance of the ‘excellent volume’ for debates today, CLJ, 2019, 207-210), the European Intellectual Property Quarterly (by Dr Chen Wei Zhu – ‘an exemplary study’ offering ‘profound insight’, EIPR, 2019, 41(4), 266-268) and the Intellectual Property Quarterly (by Dr Aislinn O’Connell – a ‘fascinating read’, IPQ 2019, 1, 87-89). The book will be followed later in 2019 by a film, presented by Dr Cooper and produced by Exhibition on Screen, which uses nineteenth century paintings as a starting point for exploring the relation between copyright and culture. The full IPKat review can be found here: http://ipkitten.blogspot.com/2019/05/book-review-art-and-modern-copyright.html

Dr Cooper launching Art and Modern Copyright at the Victorian Picture Gallery in December 2018. Photographs by Susanna Brunetti.
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UK Authors’ Earnings and Contracts 2018: A Survey of 50,000 Writers

CREATe has released a study of UK Authors’ Earnings and Contracts based on a large scale survey of 50,000 authors conducted in 2018. The survey was funded as independent research by the UK Authors’ Licensing and Collecting Society (ALCS), and is a re-run of a survey first conducted in 2006 (also led by Kretschmer), and repeated in 2014 (by Gibson, Johnson & Dimita out of Queen Mary, University of London). This series of surveys offers one of the first opportunities to assess robustly the effects of digital changes on the labour market and working conditions of a specific professional sector.

Download:
UK Authors’ Earnings and Contracts 2018: A Survey of 50,000 Writers

ALCS news release (2 May 2019):
https://www.alcs.co.uk/news/authors-earnings-research-researchers-publish-full-report


EXECUTIVE SUMMARY

Author pay declines in a booming industry

Surveys of creators’ earnings consistently demonstrate the presence of winner-take-all markets. Thus it is unsurprising that there is a large gap between the earnings of successful writers and the rest. This has increased since 2006 but the pattern has remained similar. The top 10 percent of writers still earn about 70% of total earnings in the profession. However, the current survey found a dramatic drop in average and median earnings. The nominal average (mean) earnings stagnated, changing from £16,531 in 2006 to £16,809 in 2014 to £16,096 in 2018. Accounting for inflation, this is a drop over 12 years of 49 percent over a period of time in which the UK creative industries reached £100bn GVA and have grown at nearly twice the rate of the economy since 2010. (DCMS Sectors Economic Estimates 2017: GVA, Department for Digital, Media, Culture and Sport, 28 November 2018. Available at: https://www.gov.uk/government/news/britains-creative-industries-break-the-100-billion-barrier)

Why is this apparent decline in author pay occurring? Are new (digital?) sources of revenue not passed through? Does the decline in value for creative craft create disincentives? Should it trouble policy makers? These are difficult questions. Some might say that writing is ‘cheap’. There are no large overheads. Many writers write in addition to engaging in other professional activities. They have made personal choices how to allocate their time. Yet even when screening out occasional or part-time writers, the picture remains startling. As the key sample for comparing developments over time, the study defines a sub-group of writers who spend at least half of their time writing. These ‘Primary occupation writers’ are people who clearly aim to make a living from writing and engage in sustained and professional effort to achieve this.

For this group, the survey shows a drop in real terms (accounting for inflation) of 42 percent in median earnings from an equivalent of £18,013 in 2006 to £10,497 in 2018, continuing a downward trend seen already in the 2014 survey.  (The median calculates the mid-point of the population, i.e. 50 percent of the population of primary occupation writers earn less than £10,497 per annum.) Continue reading

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