In our latest IP Reading Group discussions, CREATe PGRs shared their thoughts on their chosen theoretical frameworks, ranging from classic theorists such as Jeremy Bentham, to the application of Buddhist principles in rethinking privacy law. This blog provides a selection of recommended readings on theory and how they can be applied to the study of topical issues in IP.
Thaler, R. H. and Sunstein, C. R. (2008) Nudge: improving decisions about health, wealth and happiness. Penguin.
My research investigates how amateur musicians find out about, perceive and apply copyright law, and in doing so it considers factors affecting compliance. A number of theories relating to decision-making have been propounded, primarily in the field of economics, from Jeremy Bentham who suggested that people made decisions based on overall ‘utility’, determined by reduced suffering or increased pleasure, leading to the notion of an ‘economic man’ or ‘homo economicus’, and to Rational Choice theory, based on ‘utility maximisation’ where available options and any limiting factors are assessed to identify the option which gives the greatest benefits. These theories are, however, criticised for over-ambitiously expecting people to behave consistently and to be able to process large amounts of information in order to reach the optimal outcome, leading to alternatives such as Herbert Simon’s concept of ‘satisficing’ where an individual might not assess all the options but choose one which is good enough. Similarly, Kahneman and Tversky’s theory of Bounded Rationality recognises that, when faced with too much information or lack of time, people make decisions based on ‘heuristics and biases’, while their Prospect Theory recognises that decisions can be influenced by the context in which they are presented.
Richard Thaler described homo economicus as ‘Econs’ and, together with Cass Sunstein, recognised the importance of context in decision-making and developed the Nudge Theory or ‘libertarian paternalism’ where individuals or groups retain their freedom of choice but may be influenced or ‘nudged’ towards optimal choices through the ‘choice architecture’, the manner in which relevant information is presented (Thaler and Sunstein, 2008). Nudge Theory is now widely employed, and examples include the positioning of items on supermarket shelves or the ‘traffic light’ coding on packaged foods, while the UK Government’s Behavioural Insight Team (The Behavioural Insights Team (bi.team)) or ‘Nudge Unit’ introduced the idea of singing ‘Happy Birthday’ when washing hands to reduce the risk of Covid-19 transmission. Nudge Theory is not without its critics who dislike its manipulative aspects and who point out that it might not be successful in every context and, in some circumstances can lead to a ‘boomerang effect’ where unwanted behaviour is in fact promoted: ‘I did really well having a just a salad for lunch so I’ll eat a bar of chocolate as a reward’. Despite these reservations, ‘libertarian paternalism’ seems here to stay, and my research identifies a number of ‘nudges’, such as more detailed information and clearer use of the copyright symbol on printed music scores, which might encourage greater and more confident compliance with copyright law by amateur musicians.
Gregory, D. (2004) The Colonial Present: Afghanistan, Palestine, Iraq. Blackwell Pub.
Derek Gregory attempts to illustrate how the colonial past of Afghanistan, Iraq and Palestine (through the involvement of the British and Americans) continues to be present. In particular, he claims that the September 11 attacks activated a series of political and cultural responses that were colonial in nature.
What is of particular significance is Gregory’s definition of ‘colonial present’. He states that by using the term ‘colonial present’, he does not mean that little has changed since the 19th century; rather, he suggests that it refers to the ‘ways in which many of us continue to think and to act in ways that are dyed in the colors of colonial power’ (p.xv). He further clarifies that he uses the active sense of the term (‘to colonize’) in order to show how the issues of power, knowledge and geography continue to colonize the lives all over the world.
Anghie, A. (2005) Imperialism, Sovereignty and the Making of International Law. Cambridge University Press.
I also recommend Anghie’s book, which challenges the reader to think of possible ways in which we can create a non-imperial international law. In other words, he implies that the colonial structures and origins of law are still in place in every effort to instate a new order. He further wonders whether the existing international law – once used for the suppression of some voices – could be used in order to question those structures.
I consider both Gregory’s and Anghie’s books to be inspiring in the context of my theoretical framework, specifically in the context of restitution of colonial cultural objects. This is because many of us consider colonialism a distant past, ‘a foreign country’ (Lowenthal, 1985, p.4). But its traces are still in place. From the origins of international law and the distinction of ‘civilized’ and ‘uncivilized’ people to the treatment of colonial cultural objects and how they are displayed or explained; the ‘colonial present’ is omnipresent.
Braithwaite, J. (2006). Responsive regulation and developing economies. World Development, 34(5), 884-898.
From my theory readings, I would like to recommend the book Theory of Responsive Regulation: transcending the deregulation debate (1992) from Ian Ayres and John Braithwaite and the article Responsive Regulation and developing economies (2006) from John Braithwaite. Both works draw on the ‘Responsive Regulation Theory’, which has been used for more than two decades as a reference source for scholars and policymakers researching and working with regulation.
In the book, Ayres and Braithwaite outline how regulation can be a fruitful combination of persuasion and sanctions. They rely on empirical studies of national regulations to defend a third alternative to both the free market and government regulation, within a political environment where the notion of regulation was under threat from the neoliberal policies of the 1980s and the 1990s. The authors believe in the empowerment of private and public interest groups in the regulatory process, and that governments should support and encourage industry self-regulation.
The responsive regulation theory uses an enforcement ‘pyramid’ that provides for regulatory mechanisms that escalate up, from the bottom to the top, starting with more persuasive measures and finishing with more punitive measures. It provides for a dynamic model, prioritizing always dialogue first. Complementing his previous work, in his article, Braithwaite argues that we live in an era of networked governance, with the fundamental roles of non-state regulators, such as NGOs, industry association co-regulators, professionals, international organizations and other gatekeepers.
Since part of my research, at least originally, is to develop a flexible regulatory model that encompasses new industries’ technologies, particularly algorithms, this theory, with its pyramid design, provides creative and deliberative tools to develop regulatory strategies and a new regulation model for the use of copyrighted works on the Internet.
Mittelstadt, B. (2017) From individual to group privacy in big data analytics. Philosophy and Technology, 30(4), 475–494.
Under surveillance capitalism, information describing the behaviours and characteristics of users is being constantly gathered over time, categorizing individuals into groups or classes of interest to the platform. Such new algorithms are able to generate new ‘groups’ of users. In such cases, Mittelstadt argues that the protection mechanism of data protection law or anti-discrimination law can be easily bypassed. Under the decision-making algorithm, shared behavioural identity tokens possibly lead to bias or discrimination. This article examines the ethical significance of creating such groups and concludes that algorithmically grouped individuals have a collective interest. Mittelstadt proposes a new legal model to fill this gap, but also an interesting theory.
Per Mittelstadt, if the efficiency of the decision-making algorithm is the primary consideration, then it may not be possible to correct decisions that are unfair to individuals. A similar issue exists in personalised pricing, leading us to rethink whether current data protection law is sufficient, and whether the dichotomy of data is sensible. However, from another angle, it is also risky to expand the scope of data protection law. If the scope of data protection law is too broad, as some scholars have argued, it may become the ‘law of everything’, especially in digital era. This idea is also useful to my research as group privacy is an essential value to the regulation of personalised pricing. We need to reconsider to what extent data protection law should protect online users against personalised pricing.
Kitiyadisai, K. (2005) Privacy Rights and Protection: Foreign Values in Modern Thai Context. Ethics and Information Technology, 7:17-16
Since Buddhism has profoundly influenced Thai culture, it is worthwhile exploring the Buddhist perspective on privacy rights. According to the Buddhist principles, the rights of ownership of everything, even our own bodies, are all illusory. Hence, it has been argued that human rights, including privacy rights, are not naturally inherent to human beings. Instead, those rights are human-made in order to achieve personal and societal objectives. Therefore, some scholars have considered that Buddhist principles or theories may conflict with human rights.
Nonetheless, although Kitiyadisai acknowledges the concepts of human-made rights and illusion, she argues that Buddhism does teach Thai people to be thoughtful, kind and accommodating to other human beings through the law of Karma and numerous spiritual and moral rules. In her view, ‘the Buddhist approach to human rights which includes privacy rights is more practical and spiritual at the same time’ (p.19) As a result, human rights could be protected by those Buddhist rules to some extent. I strongly agree with this view and further assert that Buddhist principles do not obstruct but rather support the protection of privacy. For example, in order to practice meditation and pursue self-development and enlightenment, Buddhists have been taught to insulate themselves from any distractions or free themselves from any kind of delusions and to respect other’s privacy at the same time. In this sense, it could be said that all Buddhists need privacy so as to promote self-development and enlightenment. Consequently, it can be said that privacy, in terms of limited access to oneself, and privacy interests, in light of promoting freedom and self-development, are deeply rooted in Thai Buddhist culture.
Fairclough, N. (2015) Language and Power (3rd edition). Routledge.
At its core, my research questions what it means to be a ‘user’. In discussions around copyright, the user is frequently presented as a neutral concept, mostly purposive and descriptive of one’s relationship with a creative work. However, the conscious choice to engage with this terminology requires further interrogation. In challenging this neutral presentation of the user, my theoretical framework is mainly inspired by Fairclough’s writings on Critical Discourse Analysis (CDA). Whilst often conceived as a research method, CDA is better understood as a hybrid between theory (with influences from Foucault, Habermas and Gramsci – among others) and methodology.
Fairclough’s approach challenges the neutrality of language and contends instead that language always contains politics and ideology that can maintain or change power relations in society. His theory, when applied to my research, contends that the naturalised and common-sensical presentation of ‘user’ in fact disguises the power relations that are maintained both behind this discourse (e.g. the status of the speaker and significance of where law allocates power between a rightsholder and user) and through discourse (e.g. specific linguistic features of the text).
Scholars outside of the CDA community often find Fairclough’s work difficult to engage in, particularly due to the dense style of writing and use of technical, linguistic terms (Fairclough being first and foremost a linguist). This learning curve is unavoidable for new initiates, however Language and Power reads much more as a ‘how-to’ guide with many examples of CDA in action. In particular, the three-dimensional framework for studying discourse offers multiple entry points for analysis of texts at micro, meso and macro levels without being strictly prescriptive to the method of analysis as such. A recommended read for everyone, Fairclough’s work is both challenging, and eye-opening in promoting awareness of our use of language and its effects on society.
Marshall, L. (2005) Bootlegging: Romanticism and Copyright in the Music Industry. Sage.
As the law directly concerned with cultural production, copyright is closely related to cultural ideology and context. For example, in respect of musical works, Romanticism is frequently mentioned as an important ideological and contextual influence. In the UK, the landmark case Bach v Longman (1777) confirmed copyright law covered music notation, and the UK Copyright Act 1842 formally included a ‘sheet of music’. Therefore, it is not surprising that scholars read Romanticism as one driving factor of copyright law. For example, Goehr (The Imaginary Museum of Musical Works: An Essay in the Philosophy of Music, 1992) proposes that the inclusion of musical works in copyright law reflects the distinction between composition and performance in music practice during the Romantic period. Toynbee (Copyright, the work and phonographic orality in music, 2006) holds a similar opinion. Following this strand of thought, the uncopyrightability of certain forms of traditional music would be understandable, as the music lacks ‘true imagination’ from an individual genius, and thus does not meet the copyright requirements of originality and individual authorship.
On the other hand, In Bootlegging: Romanticism and Copyright in the Music Industry, Marshall argues:
‘romantic ideas are (and have been) used by rights-holders to achieve strategic aims throughout copyright’s history. Romanticism as the primary way of interpreting culture in capitalist modernity is because it greatly facilitates ‘publishers’ in their copyright-extending and profit-maximising activities.’ (p.69)
Marshall interprets Romanticism as the ‘means’ used by copyright law to achieve the law’s own ‘ends.’ In line with this understanding, ‘true imagination’ and ‘romantic genius’ are rhetoric to conceal copyright’s commoditisation of traditional culture.
Romanticism contains messy, and even conflicting, trends such as nationalism and orientalism. For instance, Robert Burns and George Thomson produced Scottish national songs with traditional ballads, but classical arrangements (e.g. arrangements from Beethoven). It is improper to overestimate the influence of Romantic ideas on copyright law. However, through deconstructing Romantic discourse, such as ‘true imagination’ and ‘romantic genius’, cultural biases behind copyright requirements like originality and individual authorship are revealed.