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CREATe IP Reading Group: Recommendations for Summer Reading

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CREATe IP Reading Group: Recommendations for Summer Reading

By 7 July 2022No Comments

Post by  Janet Burgess, Aline Iramina, Amy Thomas, and Jiarong Zhang.

Inspired by Dr Elena Cooper’s blog on Recommendations for Summer Reading: Copyright Books in Review, published last summer, in our last session CREATe IP reading group discussed book recommendations for this summer. As in previous blogs where we shared recommended readings that have inspired our research and  inform our theoretical frameworks, in this blog we present some of our recommendations for summer reading. This selection includes books that address a variety of themes, from the culture of game development, the memoir of a leading jurist, IP law and Internet of Things (IoT), and digital constitutionalism in an algorithmic society.

Jurist in Context: A Memoir (Law in Context) (2019) by William Twining

‘Later we came on to that absurdity, the English law of liability for harm caused by animals: we had fun discussing whether cows and sheep were ‘cattle’; they loved Filburn v People’s Palace in which a circus elephant trampled a dwarf; they were excited by the question whether the owner of a talking parrot could be liable for the parrot’s slanders; then we came to a case in which a camel bit the hand of a child in the London Zoo. Most of the case turned on whether camels were by nature tame or wild. There was a zoo in Khartoum and Sudanese are familiar with camels. ‘Aha, I thought, better than horses jumping over hedges where there are no hedges.’ Unusually, a hand went up: ‘Please, sir, why was the camel in a zoo?’ My immediate reaction was that the student was missing the point. Then the scales fell from my eyes – neither in this case, nor most of the other Torts cases we had studied, could the facts arise in litigation in the Sudan context. […] I concluded that the English Law of Torts was largely irrelevant to Sudan. I later wrote an article under the rubric ‘The Camel in the Zoo’. This was my first explicit attempt to outline a ‘law in context’ perspective in print. It raised questions about how Sudanese dealt with wrongful harms and other risks. ‘It is governed by custom’, said the students. How could I find out about these customs? I asked. ‘Ask the people’, came the reply. […] Context, context, context. As soon as my eyes were opened, I could see it everywhere. When a train-driver slaughtered some cattle lying on a railway on an open plain, this was held to be sufficient provocation to reduce murder to manslaughter for the cattle-owning Baggara people. Under English law at the time, damage to property could not be a basis for the defence of provocation in homicide, but the test in the context was held to be ‘the reasonable Baggara’ (Twining, 2019, pp. 39–56).

This is the engaging and accessible intellectual memoir of a leading jurist. It tells the story of the development of his thoughts and writings over sixty years in the context of three continents and addresses the complexities of decolonisation, the troubles in Belfast, the contextual turn in legal studies, rethinking evidence and the implications of globalisation which have been central to his life and research. In propounding his original views as an enthusiastic self-styled ‘legal nationalist’, Twining maps his ideas of law as a unique discipline, which pervades all spheres of social and political life while combining theory and practice, concepts and values, facts and rules in uniquely fascinating ways. Addressed to academic lawyers generally and to other non-specialists, this story brings out the importance and fascinations of a discipline that has changed, expanded and diversified in the post-War years, with an eye to its future development and potential.

Janet Burgess, Doctor of Philosophy (PhD) in Law at University of Glasgow (2021)

 

Digital Constitutionalism in Europe: Reframing Rights and Powers in the Algorithmic Society (2022) by Giovanni de Gregorio

This is an open access book that addresses the role of constitutional democracies in the algorithmic society, with a particular focus on the European framework. As emphasised at the beginning of the book, the primary goal is to explore ‘how European digital constitutionalism can protect fundamental rights and democratic values against the charm of digital liberalism and the challenges raised by platform powers’ (De Gregorio, 2022). For this purpose, it addresses, as paradigmatic examples, challenges involving freedom of expression, privacy and data protection, focusing on the challenges of content moderation and personal data processing based on automated decision-making technologies. Adopting an innovative approach, the book explores digital constitutionalism from a descriptive to a normative perspective. To provide the basis for its normative claims, it describes the path that led to the rise of digital constitutionalism in Europe in three phases: digital liberalism, judicial activism, and digital constitutionalism. It also presents the main challenges to the future of digital constitutionalism in Europe in three different categories: digital humanism versus digital capitalism (values); public authority versus private ordering (governance); and constitutional imperialism versus constitutional protectionism (scope).

In the present context, regulation of platforms is one of the main priorities of most governments, especially in the EU. With important legislative initiatives under discussion in the European Parliament, this book provides a descriptive and normative framework to address the main challenges involving platform powers from a constitutional perspective. As such, this book is a good recommendation not only for students, lecturers and researchers interested in platform governance, content moderation and data protection, but also for policymakers, lawyers and judges working in this field. One of the best parts of the book is how it provides an extensive overview of main legislation and case-law on data protection and content moderation in the EU and the US, contextualising and explaining the main provisions and decisions and connecting them with other provisions and cases involving the protection of fundamental rights. It is also nice the way it clearly builds all the main arguments on this tension and convergence between content and data legal regimes and the rights to freedom of expression, privacy, and data protection and how it provides some criticisms to the traditional instruments of pluralism (e.g., transparency), arguing that often they have proven to be fallacies, when implemented in the algorithmic society. Finally, it is interesting to see how the book ends by pointing to a new, more mature, and sustainable phase of digital constitutionalism in Europe, where the adoption of a hybrid system of governance based on public values guiding the private sector’s activities has emerged as a promising solution to the algorithmic society. From a governance perspective, this seems to be a trend not only in Europe, but also in other countries that are working on new platform regulations.

Aline Iramina, PhD Candidate in Law at University of Glasgow

 

Blood, Sweat and Pixels (2017) by Jason Schreier 

Blood, Sweat and Pixels offers insightful research about cultural production in the, often secretive, games industry. The book is comprised of a series of interviews with game creators, a holistic category that includes software designers, engineers, graphic artists, and musicians, who worked on bestselling games. This range covers both the large, and well-funded, triple A titles (incl. Uncharted 4 and Destiny) and smaller indie productions (incl. the story of the ‘one-man army’ behind Stardew Valley).

This book is timely to revisit given the recent bleak news about the state of working conditions in the game industry (see here and here). As Schreier states in the introduction, ‘it’s a miracle that any game gets made’, and the development process is often troubled. For those interested in cultural production, cultural policy, and copyright, Pixels will often sound like an old story in a new context: gaming is a wealthy industry with huge wealth inequality, and a clear divergence between those who offer their creative labour and those who reap the subsequent economic rewards.

Often, the book is more neutral on this point (or indeed, airbrushed, as is the case with discussions on Uncharted 4 and Diablo 3) and in need of a critical application. The reader is left to draw their own conclusions about the significance of the repeated narrative of creators’ initial excitement at the beginning of a project, subsequent panic due to time and budgetary constraints, replanning, and ‘The Crunch’ (excessive, exploitative overtime at the end of a project). Nonetheless, the book delivers on its promise to offer an initial survey of the culture of game development, and a glimpse at the systematic undervaluing of the ‘human’ component in this significant creative industry.

Amy Thomas, Doctor of Philosophy (PhD) in Law (2022) and Lecturer in Intellectual Property and Information Law at University of Glasgow.

 

The Right to Repair: Reclaiming the Things We Own (2022), by Aaron Perzanowski

Despite the surging right to repair campaign in the EU and the UK, this book is the first, and probably the only one so far, focusing specifically on ‘the right to repair.’ We are destined to be surrounded by the Internet of Things (IoT), smartphones, smart home, smart cities, and smart everything. However, IoT may be too smart for us to afford. First, they are protected by well-established technologies (e.g., encryption, authentication) and the law (e.g., data protection law, intellectual property law). As consumers and independent repairers, we cannot repair IoT by ourselves, since we can disable devices and even infringe intellectual property rights that protect spare parts (patent), maintenance information (copyright), and labels on IoT (trademark). Consequently, we are forced to buy new IoT devices when something is broken and because of built-in obsolescence. Second and more significantly, IoT is collecting and sharing our data (e.g., facial images, voices, messages) all the time. In other words, we are paying IoT with our privacy, which causes ethical challenges regarding information security, physical safety, and so on.

This book is a great choice for every ordinary consumer that is concerned about the money in their pocket and their privacy. This recently published book provides a general overview of the right to repair, covering every main aspect, such as ‘Repair and Intellectual Property’, ‘Repair and Competition, and ‘Repair and Consumer Protection.’ It is an interesting and readable book that doesn’t frighten readers with complex technical language. Furthermore, this book provides a new perspective to reflect on legal issues and policy formulation for researchers in intellectual property law, competition law, and consumer law. Either as a consumer or a researcher, pick the book up and see the right to repair and IoT in a new way!

Jiarong Zhang, PhD Candidate in Law at University of Glasgow