The 24th annual conference of the Association of Law, Culture and the Humanities took place this June, hosted by Emory Law School, Atlanta, Georgia (USA) on the theme of ‘Unsettling Law’. The conference, hosted both in-person and on-line over two-days, comprised some 50 panels, roundtables and plenary talks, drawing an international audience of interdisciplinary scholars from law and the humanities. In the words of the conference synopsis, ‘law often resides in the pull between what is settled and what is not’. Yet ‘what is settled and what remains open to different futures may be contested’. CREATe researchers explored these questions in a panel about ‘Creativity and the Law’ spanning topics from copyright, contract and competition law and drawing on empirical, historical and interdisciplinary methodologies.
Dr Xiaoren Wang (Post-doctoral Research Associate, CREATe) opened with an empirical study of creativity in the works posted on video sharing platforms. Video sharing platforms such as YouTube, are often presented as a ‘creative paradise’ in opening up creativity and facilitating cultural expression. Yet, Dr Wang questioned this, by proposing an ‘empirical test for creativity’: she identified psychological and economic dimensions to cultural practice which act as ‘anti-creative’ factors, resulting in a high degree of homogeneity in videos. The research is funded by the UK Creative Industries Policy and Evidence Centre.
Bart Meletti (CREATe Creative Director) presented his on-going PhD research, working with documentary film makers and the creators of immersive experiences, into whether creative and cultural practice can play a role in influencing legal standards in the application of fair-dealing defences. Inspired by work in the US – ‘Reclaiming Fair Use: How to Put the Balance Back into Copyright’ by P .Auderheide and P. Jaszi (2018, 2nd ed) – the project is being conducted in collaboration with IVIR, University of Amsterdam for the ReCreating Europe consortium. The discussion of this paper, with questions from the floor from Dr Claudy Op Den Camp, University of Bournemouth (also a presenter on a separate panel, ‘Law and Film’), looked hopefully to a future where documentary film-makers might no longer be faced with industry expectations of rights-clearance by default where copyright exceptions clearly applied.
The third speaker on the panel was CREATe’s competition law expert Dr Magali Eben (Lecturer in Law, CREATe). Adopting an historical analysis to competition law, Dr Eben contrasted the narrower idea of competition law as efficiency (promoted by the Chicago school of economics), to an older and broader notion of competition law as about the public interest. Opening up competition law to wider ideas of the public interest, argued Dr Eben, enables us to ask questions about the relationship between competition and creativity, for example where gatekeepers employ their market power to buy-up cultural works or control distribution in a manner that stifled creativity and access to culture, and she made reference to her work exploring current and historic case studies.
The final speaker was Dr Elena Cooper (Leverhulme Early Career Fellow, CREATe), who also chaired the panel. Dr Cooper explored the relationship between copyright and contract law, and in turn law and psychology. Dr Cooper opened comparing the regulation of copyright contracts through (i) the application of general contractual doctrines (common law restraint of trade) and (ii) more recent bespoke statutory rules (e.g. Chapter 3, DSM Directive 2019/790 and the proposals in the UK Copyright (Rights of Remuneration of Musicians etc) Bill 2021). She then asked how insights from psychology – particularly the work of twentieth century theorist Abraham Maslow (1908-1970) who proposed a holistic theory of psychological good health – might enable us to re-think the relation between copyright and contract.
The Association for the Study of Law, Culture and the Humanities is an ‘organisation for scholars engaged in interdisciplinary, humanistically oriented legal scholarship’. More information about the organisation and how to join can be found here. The full programme for this year’s conference can be found here.