2020 and 2021 has seen the publication of a number of landmarks of intellectual property scholarship. These include ‘Global Mandatory Fair Use’ by Tanya Aplin and Lionel Bently, ‘Copyright, Creativity, Big Media and Cultural Value’ by Kathy Bowrey ‘Drafting Copyright Exceptions’ by Emily Hudson, ‘Intellectual and Cultural Property’ by Fiona Macmillan and ‘The Color of Creatorship’ by Anjali Vats. In advance of the publication of a series of book reviews (forthcoming respectively in Law Quarterly Review, Entertainment Law Review, Queen Mary Journal of IP, IP Quarterly and Social and Legal Studies), CREATe’s Dr Elena Cooper draws together some of the themes raised by these important works and discussed in more detail in her individual reviews.
All five of these titles are important works of scholarship, rooted in rigorous original research and providing bold and fresh perspectives about how we think about copyright. I will start with Kathy Bowrey’s Copyright, Creativity, Big Media and Cultural Value. This is, without reservation, a landmark work of copyright history: the first historically grounded account of the emergence of the ‘Big Media’ corporates of the twentieth century (publishing, film and music), Bowrey’s account is innovative in locating copyright’s central category of ‘authorship’ at the intersection of ‘cultural, political, legislative and business activity’ (p.3). Whereas historicising ‘authorship’ and uncovering its genealogy has been a concern of scholars of law and the humanities since the 1980s and 1990s (inspired by Michel Foucault’s ‘What is an Author?’ (1969)), Bowrey’s account captures the lived experience of the law and this brings important new themes to the centre-stage of copyright history: the incorporation of the author ‘into the commercial empires in the 20th century’ and the ‘value of copyright in practice’ (p.25). While this is an historical work, Bowrey also speaks to present day concerns. One conclusion concerns the importance of ‘authors and artists today’ making the ‘important decisions about the production and distribution of cultural content, their audiences, brand and licensing terms, rather than relying upon others’ (p.211)
Bowrey’s ‘real world’ approach to copyright – where legal doctrine is just one aspect of the empirical reality of how copyright operates in practice – also characterises Emily Hudson’s Drafting Copyright Exceptions. Hudson’s concern is not with history, but rather with the use of qualitative empirical methods to assess the operation today of copyright exceptions in a particular sector (museums, galleries, libraries and archives) and in four specific jurisdictions (Australia, Canada, UK and USA). The significance of Hudson’s research, which impressively fuses empirical methods with legal theory (scholarship on standards and rules) and comparative law, most obviously lies with the demand in recent decades for an ‘evidence-based approach’ to copyright (para 2.1, Report of Ian Hargreaves, May 2011, Digital Opportunity: A review of Intellectual Property and Growth). While there is a growing body of empirical work on copyright generally (for instance, the Copyright Evidence Wiki, hosted by CREATe, currently catalogues 820 empirical studies: copyrightevidence.org), nothing to date equals the depth and breadth of Hudson’s gargantuan study (based on detailed semi-structured interviews with hundreds of interviewees over a 14-year time period) and this enables her to draw out meaningful conclusions about how best to draft copyright exceptions more generally. However, viewing Hudson’s Drafting Copyright Exceptions alongside Bowrey’s Copyright, Creativity, Big Media and Cultural Value, makes abundantly clear a more general point that copyright scholars should note: that our understanding of legal doctrine can be radically changed by scholarship that assesses the real-world operation of the law (whether by historical archival methods like Bowrey or empirical approaches informed by social science methods like Hudson).
Bowrey’s Copyright, Creativity, Big Media and Cultural Value also has some affinities with aspects of The Color of Creatorship by Anjali Vats. Vats’ study is the first in-depth and longitudinal account of the significance of race to intellectual property law. The contention that intellectual property law both includes and excludes – that only some types of labour ‘count’ for intellectual property protection– has been a central premise of much critical scholarship, particularly regarding copyright law. Yet, this literature, though it did point to biases against the cultural practices of certain groups like indigenous artists, nevertheless centred on exploring the aesthetic biases embodied in law, particularly those stemming from the influence of Romantic authorship on copyright doctrine. Viewed in this context, the radicalism of Vats’ study is apparent: The Color of Creatorship is part of a growing body of scholarship that takes intellectual property’s inclusions and exclusions beyond a focus on particular aesthetic theories, to broader questions about the relationship between law and social justice more generally. In particular Vats’ method furthers the influence of Michel Foucault on legal scholarship: beyond mere questions of ‘genealogy’ and historicity of legal categories (which as noted above, lie at the heart of much existing copyright history scholarship) Vats employs concepts that go to the heart of Foucault’s theory of power. From Foucault, Vats takes the idea of ‘a grid of intelligibility’, as a ‘scheme that helps to make sense of social orders’ (p.7) and ‘a framework for understanding how power is organised’ (p.2-3). Vats convincingly shows that ‘intellectual property citizenship’ – the set of rhetorics that decide inclusion and exclusion in US law – is such a ‘grid of intelligibility’. While the specifics of the accounts uncovered by Bowrey and Vats are very different, what these accounts share is a preoccupation with the relationship of legal categories to social power. While Vats’ account concerns intellectual property and racial inequality, Bowrey’s account lays bare the relation between copyright’s category of ‘authorship’ and corporate power (as well as, in her chapter on music, discussing gender equality, and in her chapter on international publishing, imperial and post-colonial power relations).
The relation of copyright to corporate power (as well as post-colonial power relations) is also a central concern for Fiona Macmillan. Intellectual and Cultural Property provides a highly original critical analysis of the law of copyright and cultural heritage, premised on a particular understanding of the relationship between law, culture and capitalism: both ‘capital’s occupation of our culture generally’ and more specifically the way that Western capitalist culture has ‘penetrated and occupied’ the post-colonial world (p.177). Macmillan’s study is notable not only for its novelty, in considering these two bodies of law together, but also for its rich theoretical analysis, for example, in exploring binary distinctions common to both systems: nature/culture, authentic/fake, moveable/immoveable, tangible/intangible. However, this work is far more than a critical analysis of the relation between the law of copyright and cultural heritage. Intellectual and Cultural Property is a manifesto for a better world: in Macmillan’s own words, it ‘invokes law’s political register and its capacity for transformation – both of itself and of its subjects’ (p.208). The message, then, is that law matters: contemplating legal change – specifically ‘rethinking copyright’ and ‘radicalising cultural heritage’ such that the market becomes embedded in community – allows us to imagine a different cultural world with different power relations. In doing so, and amongst many other things, Macmillan outlines the legal conditions that would, she argues, result in disbanding of ‘global media and entertainment giants’ and the flourishing instead of ‘a plethora of small independent producers and distributors’ (p.201), thereby unravelling the close relationship between copyright, culture and corporate power (the historical emergence of which is charted by Bowrey’s Copyright, Creativity, Big Media and Cultural Value).
Last but most definitely not least, I turn to Tanya Aplin and Lionel Bently’s Global Mandatory Fair Use. If you only have time to read one of these books over the summer, it must without doubt, in my opinion, be this one: in radically changing how we understand the norms concerning exceptions in international copyright, Global Mandatory Fair Use has important implications for copyright laws worldwide. Global Mandatory Fair Use centres around a bold claim: that the current international copyright system, which spans most countries of the world, mandates a ‘fair use’ exception to copyright infringement. This will be startling reading for copyright lawyers, policy makers and judges, all over the world. The radicalism of Global Mandatory Fair Use is that, in breathing new life into a much-neglected specific exception in the Berne Convention, Article 10(1) concerning quotation – Aplin and Bently provide an alternative centre of gravity for debates about how to accommodate the interests of users into copyright law to the ‘three-step test’ (which as interpreted by the WTO Panel, favours the interests of rights-holders and narrow exceptions). Impressive in its meticulous legal analysis as well as the breadth of interdisciplinary material on which it draws to uncover how quotation is understood in the cultural sphere (e.g. quotation in music, film, and architecture), Global Mandatory Fair Use provides a fresh understanding of international copyright exceptions that allows for a more permissive copyright system, accommodating a plurality of interests, rather than favouring rights-holders. In so doing, it provides a more positive view of the international intellectual property system, the processes by which it is made and the nature of its potential influence. For example, in Intellectual and Cultural Property, referring to the WTO Panel decision (noted above), Macmillan identifies the international copyright framework as a source of the ‘loss of any discourse about balance in copyright law’ (p.16). Viewed in this context, Aplin and Bently’s Global Mandatory Fair Use is profoundly hopeful and empowering: it empowers us to unlock the potential of international copyright as an instrument for achieving balance in copyright and, for that reason, it is imperative that all interested in copyright (including lawyers, judges, policy-makers, scholars and users groups, all over the world) give this important book the close attention that it deserves.
The full text of Dr Cooper’s book reviews are forthcoming in Law Quarterly Review (Aplin and Bently, Global Mandatory Fair Use), Entertainment Law Review (Bowrey, Copyright, Creativity, Big Media and Cultural Value), Queen Mary Journal of IP (Hudson, Drafting Copyright Exceptions), IP Quarterly (Macmillan, Intellectual and Cultural Property) and Social and Legal Studies (Vats, The Color of Creatorship). Readers are also referred to the talks delivered by three of these authors as part of the CREATe Public Lecture series, for which related resources (lecture reports, Working Papers and/or recordings) are available on the CREATe website: Lionel Bently, Emily Hudson and Fiona Macmillan.