With our large cohort of new PGRs, the latest discussions in our IP Reading Group focussed on the readings that have inspired our research, whether as a starting point for a new project, or as a continuing source of motivation throughout our thesis. This blog provides a summary of selected recommended inspiring readings from an array of different perspectives, from socio-legal methodologies, to cultural heritage studies, and of course – Lessig.
Bingham, T. (2011) The Rule of Law. Penguin Books Ltd.
My research investigates how amateur musicians negotiate copyright law, and the two passages below were instrumental in clarifying the direction of my thoughts.
The first is by Roger Cotterrell, a distinguished academic and prolific commentator on socio-legal issues:
‘Suppose that a new piece of legislation comes into existence, created in the proper formal manner by an accepted law-making institution. What happens? […] Does the law somehow reach the world beyond this rarefied professional sphere? If so, in what way? With what effect?’ (Cotterrell, p1)
This passage introduces Cotterrell’s first book and neatly defines the focus of my PhD research. Through socio-legal research methods I identified significant differences between copyright law in the books and its practical application by my participants who, despite accepting copyright law as a means of recognising and rewarding creators, are frequently non-compliant through ignorance and confusion rather than through deliberate or negligent avoidance.
The second passage is by Tom Bingham, former Master of the Rolls, Lord Chief Justice and Senior Law Lord, and described as ‘the greatest judge of our time’:
‘The law must be accessible and so far as possible intelligible, clear and predictable […] [W]e ought to be able, without undue difficulty, to find out what it is we must or must not do […]’ (Bingham, p37)
This seminal work was written not as a legal textbook but for anyone interested in the topic, and came about after Bingham chose the Rule of Law as the subject for a lecture because ‘he wasn’t quite sure what it meant’ (pvii) and didn’t think anyone else was either. Bingham outlines eight elements integral to the Rule of Law, starting with ‘Accessibility of the Law’, and my research concludes that even though infringement is a strict liability tort where ‘ignorance is no excuse’, copyright law in the context of amateur music does not meet Bingham’s criteria for accessibility.
Murray, A. (2011) Nodes and Gravity in virtual space. Legisprudence: International Journal for the Study of Legislation, Hart Pub., v. 5, n. 2.
Andrew Murray’s article introduces an inspiring analysis on internet regulation, which goes beyond Lawrence Lessig’s breakthrough thesis on ‘code is law’, bringing to the discussion the important role of communication and discourse in the implementation and effectiveness of any internet regulation. In his ‘Active Matrix’ doctrine, Murray argues that regulation does not apply to an individual alone, but to what he calls a ‘Habermasian opinion former’, which is a member of a community who gives or removes legitimacy from any regulation. Besides that, Murray highlights the key role of gatekeepers in this world of multiple overlapping matrices, being the internet gatekeepers that control the flow of the information, and the increasing reliance of regulators on internet gatekeepers as proxies in their attempts to control online activities. Finally, he argues that there are different kinds of gatekeepers and those that are more powerful have a greater gravitational force, making it harder for individuals to overcome their regulatory settlements.
I consider Murray’s article inspiring because, particularly in a context where discussions involving the implementation of Article 17 of the Digital Single Market Directive are constant, this could not be more true. Moreover, when we talk about copyright governance by algorithms, which is the main focus of my PhD research, it is impossible not to think about the fundamental role played by internet gatekeepers, such as social media platforms, to copyright regulation.
Lessig, L. (2006) Code and other laws of cyberspace: Version 2.0. New York: Basic Books.
Despite being published nearly fifteen years ago, Lessig’s book is still up to date. His theory and unique terminology of ‘code’ has changed the way that people think about information technology law and, in particular, the concept of ‘code as law’.
Lessig indicates that we need a broader understanding about the regulability of cyberspace, not just focussing on a single factor (e.g. law), but also other factors including norms, marketing and architecture. In cyberspace, the architecture or ‘code’ is most important as it constructs the space and embeds certain values. Unlike the real-world, the code is made by us. Thus, it’s the most powerful regulatory means in cyberspace. Per Lessig, we always complain that it is the will of God, but we forget that we are the God in cyberspace.
Lessig then applies this idea into different but connected legal areas: intellectual property, privacy and free speech. He uses several short stories to articulate how cyberspace can affect law in these areas and how we should respond. By the same token, this idea also can be used in my research into algorithm regulation. ‘Code as law’ inspired me to think further into privacy by design and Data Protection Impact Assessments from a data protection law perspective.
Gunitsky, S. (2015) Corrupting the Cyber-Commons: Social Media as a Tool of Autocratic Stability. Perspectives on Politics, 13 (1), 42-54.
Seva Gunitsky’s article on ‘Corrupting the Cyber-Commons: Social Media as a Tool of Autocratic Stability’ focuses on co-optation of social media by autocratic and hybrid regimes. In his article, Gunitsky suggests that non-democratic regimes develop four mechanisms to adapt social media for their own purposes, as follows: counter-mobilization, discourse framing, preference divulgence, and elite coordination (p42). Gunitsky supports his points with political cases from various countries including; Russia, China, North Korea, and Egypt. I found the article very interesting because most of the literature on cyber politics focus on direct relation between regimes, technological approaches used and democratic/non-democratic outcomes they find, whereas Gunitsky has focused and provided mechanisms on how hybrid and autocratic regimes have converted social media as a tool to continue their regimes more efficiently. Touching on various other discussions on elections and cyber-optimism vs. cyber-skeptics, I recommend both researchers and students to read the discussed article if they have any interest on non-democratic regimes and their actions on cyberspace.
Meese, J. (2018) Authors, Users, and Pirates: Copyright Law and Subjectivity. MIT Press.
Meese’s interdisciplinary book blends law and cultural discourse to create a new relational framework for understanding different copyright actors. Developing on the influential work of Carys Craig, Meese challenges our rigid conceptualisations of the author, user and pirate. My own research focusses on understanding the concept of the user in copyright, and how this identity can be subjectively constructed through end user licensing agreements. In this respect, reading Meese’s work felt like confirmation of the validity of this exercise.
At the time of my initial reading, I was also involved in documenting the development of the CDSM Directive. Amidst the heated debates surrounding this, Meese’s book proved to be a helpful analytical tool to understand the strange ways in which the discourse surrounding the Directive developed. Discussions on new regulations to deter piratical behaviour often unwittingly targeted lawful users; users in some cases more closely resembled authors in the case of user-generated content, yet were considered to be quite different conceptually. Meese’s work helps explain this breakdown of the supposed binaries in copyright and offers a means of understanding different actors as interrelated, and subjectively constructed depending on who is speaking.
Holtorf, C. and Kristensen, T.M. (2015) Heritage Erasure: Rethinking “protection” and “preservation”. International Journal of Heritage Studies, volume 21, issue 4, 313-317.
Holtorf, C. and Högberg, A. Contemporary Heritage and the Future. in. Waterton, E., Watson, S. (2015) The Palgrave Handbook of Contemporary Heritage Research. Palgrave Macmillan, 509-523.
My research examines the legal protection of damaged or destroyed cultural heritage. This idea was greatly inspired by Holtorf and Kristensen’s observation that there has not ‘been much discussion of the historical significance and distinctive appeal of obliterated or vandalised heritage sites’ (p313). I found this perplexing considering how frequently cultural heritage objects and sites are damaged and either partly or fully destroyed. From this, I decided to focus my research on the value of cultural heritage following damage or destruction, by considering how damaged artefacts and sites are presented in legal discourse and protected under international law.
In another work, Holtorf and Högberg stress that studies are required into the actual role that heritage will play in the future, in order to determine how we should protect heritage today. They argue that not all heritage sites can plausibly be preserved, because of a number of constraints, and this means that consideration must be given to what can be forgotten. This has also inspired my work because it effectively challenges the general discourse on cultural heritage preservation and the notion that cultural heritage must be preserved for future generations.
Vats, A. (2020) The Color of Creatorship: Intellectual Property, Race, and the Making of Americans. Stanford University Press.
Race does not only factor into the making of creations, but also in the reception of creations. In her newest book published in September 2020, Vats strictly follows Critical Race IP theory and demonstrates how race is embedded into US intellectual property laws. The book depicts racial biases in three periods: formal exclusion, racial liberalism, and copyright internationalisation. Despite different manifestations of racial biases, white individuals are valued as good citizens and granted creatorship, while non-whites are judged as bad citizens and deprived of creatorship. The book sheds a fresh light on race problems in the field of IP.
Spitzer, J. (1990) Highbrow/Lowbrow-The Emergence of Cultural Hierarchy in America. Harvard University Press.
Another book I would like to recommend is published in 1990 by Lawrence Levine. It focuses on the fabrication of the cultural hierarchy in America. The first chapter backtracks to how Shakespeare plays changed from ‘popular art’ to ‘elite art.’ Then, the second chapter reveals a sacralisation process of some art forms, such as orchestra and painting. The final confirmation of the cultural hierarchy by the end of the 19th century is discussed in the third chapter. Whilst not related strictly to IP, the distinction between culture superiority and culture inferiority portrayed in the book inspires us to regard culture as a dynamic flow, and enables us to discover cultural inequality in the law.