The 18th European Policy for Intellectual Property (EPIP) Annual Conference will take place from 11-13 September in Kraków, a city renowned for its beauty, and culture. It will be hosted by the Jagiellonian University – one of the oldest universities not only in Poland but in the world, founded in 1364 by King Casimir III the Great.
There has always been a strong connection between EPIP and CREATe, not only for the interesting themes discussed at the conference, such as this year’s one: ‘IP, innovation and technology – challenging the present, inspiring the future’, but also because CREATe had the honour to host EPIP 10th annual conference in 2015 at the University of Glasgow, where the role of Intellectual Property in the Creative Economy was explored.
As in previous years, CREATe members will be presenting their work at the upcoming annual conference. The conference kicks off on 11 September with a PhD workshop and a keynote speech by the Advocate General of the Court of Justice, Maciej Szpunar, on ‘Internet challenges for the protection of intellectual property’.
On Tuesday, 12 September, CREATe Director Martin Kretschmer and Ula Furgal will present their research on ‘Codes and Copyright: Complements of Substitutes? The Role the Press Publishers’ Right in National Negotiations Frameworks’. This presentation is part of the themed session ‘Rethinking Copyright for Quality Journalism and Media Diversity in Europe’, which is chaired by Joost Poort and Martin Senftleben and linked to the project ‘Rethinking News and Media Law in Europe’ conducted by the Institute for Information Law (Ivir), University of Amsterdam.
Also on Tuesday, Martin Kretschmer will talk about the paper ‘Codes of conduct and Codes of practice as a regulatory instrument’, co-authored with Ula Furgal and Philip Schlesinger. Ula Furgal will discuss her research on ‘Journalist, a creator’ in the panel ‘Charting New Paths in Copyright and Creativity’. In the session on ‘IP’ Contribution to Sustainability’, Gabriele Cifrodelli will present the paper ‘Sustainable Patent Governance of Artificial Intelligence: Recalibrating the European Patent System to Foster Innovation (SDG 9)’, co-authored with Guido Noto La Diega and Artha Dermawan.
On Wednesday, 13 September, Gabriele Cifrodelli and Joséphine Sangaré will participate in the themed session ‘Generative AI and Intellectual Property: Assessing the Regulatory Landscape of the Terms & Conditions as a Start for Responsible Innovation and Adoption’, chaired by Lilian Edwards, with the participation of Igor Szpotakowski. This session is part of a larger project analysing the T&Cs of Generative AI systems, led by Lilian Edwards and James Stewart.
In the panel ‘Integrating IP Protection and Fair Labour Practices’, Amy Thomas will present the research ‘Who gets to be an author? An analysis of authors’ earnings and professional working lives’. This presentation is based on the findings of the UK Authors’ Earnings and Contracts 2022 report (Thomas, Battisti and Kretschmer), a report commissioned by the UK Authors’ Licensing and Collecting Society based on a survey of UK authors. This work is part of a larger stream of CREATe research on creators’ and performers’ earnings and professional lives.
Matteo Frigeri will present his paper ‘Regulation of Digital Access to Knowledge – The Uneasy Case of Copyright and eLending’, co-authored with Péter Mezei, in the panel ‘Exploring the Nexus of Access to Knowledge and Innovation’. Finally, Aline Iramina will discuss her research on ‘Copyright Governance by and of Algorithms: an Analysis of the Music Streaming Industry in the UK’ in the panel ‘Copyright Challenges in the Digital Era’.
This is a great opportunity to announce the official launch of Copyright User.EU website, which was developed by CREATe as part of the ReCreating Europe consortium, funded by the European Union’s Horizon 2020 research and innovation programme. CopyrightUser.EU builds upon the success of CopyrightUser.org (based on UK copyright law) and aims to make EU copyright law accessible to everyone. The guidance available on CopyrightUser.EU has been translated in all official languages of the European Union.
More information about EPIP 2023 and access to the full programme here.
Abstracts of CREATe members’ presentations can be explored below.
Codes and Copyright: Complements or Substitutes? The Role the Press Publishers’ Right in National Negotiation Frameworks (themed session)
Ula Furgał and Martin Kretschmer
By introducing the press publishers’ right, the European Union intervened into a complex relationship between news media organisations and online platforms. While the right provides press publishers with legal basis for negotiations, the process of bargaining itself was left to the discretion of EU Member States and the market. This paper examines the role the press publishers’ right plays in the negotiation frameworks put in place after its adoption, with the view to obtaining remuneration from digital platforms, Google (Alphabet) and Facebook (Meta) in particular. The paper explores whether the frameworks compliment the right and by extension the EU copyright in general, or whether they substitute them, making the press publishers’ right only an element of a background for securing the money flows from platforms to publishers.
Codes of conduct and Codes of practice as a regulatory instrument
Martin Kretschmer (co-authored with Ula Furgał and Philip Schlesinger)
Codes of conduct and Codes of practice play an increasingly important role in new regulatory frameworks proposed for digital contexts. In effect, private firms devise rules which may then be approved by a regulator, or even a government minister. This emergent form of co-regulatory rule making extends to overlapping fields, such as Online Harms, AI Regulation, Competition Law and Intellectual Property Law.
For example, under the EU Digital Services Act, the Commission will ‘encourage and facilitate the drawing up of codes of conduct at Union level’, with a focus on tackling ‘different types of illegal content and systemic risks’ (Art. 35). In the UK, the Intellectual Property Office (IPO) has been instructed to produce a code of practice between rights holders and AI firms which will ensure that AI firms can access copyrighted work as an input to their models. This is likely to cover licences, labelling and enforcement (HMG Response to Vallance report, March 2023).
Codes of practice and Codes of conduct imply ongoing revision and flexibility, which makes them a potentially attractive regulatory tool for fast developing industries and markets. Unlike statutes, codes do not involve a complex legislative procedure, which means that they can be adopted quicker and be more responsive to changing circumstances. However, since naming something a “Code” does not imply any legal form, standing or required level of enforcement, those issues need to be addressed each time.
A Code’s enforcement conditions are often vague, with very limited empirical evidence about incidences, process and results. This is not surprising where Codes are a voluntary tool of self-regulation. Entities or individuals bound by a particular code can be designated in a statute, in the code itself, or adherence might be linked to membership in a professional or industry organisation, or be completely voluntary. “Code of practice” appears to be a more common term. It is however not clear how it differs from a “Code of conduct”.
In this paper, we present the results of a pilot legal audit of 20 Codes of conduct and Codes of practice currently valid in the UK, by statutory basis, regulatory status, imposed legal obligations, and enforcement powers. We identify an accelerating use of this regulatory tool, and also a change in legal standing over time. We propose the following parameters for further analysis: Who? (self-assessment, designation); What? (duties, monitoring, behavioural obligations); How? (regulator, government minister, arbitration); Safeguards? (can removal be challenged); Enforcement? (fines, director liability); Transparency? (information asymmetries, fundamental rights).
Journalist, a creator
While a lot has been written on the topic of news media and copyright in the recent years, majority focuses on the digital platforms’ use of press publishers’ content and the regulatory responses aimed at securing monetary transfers from platforms to news organisations. Journalists, the actual creators of news content remain somewhere in the background, and it is often assumed that their interests are squarely aligned with those of news organisations. This is, however, misleading. Journalists, like other creators, contract with content producers for the use of their works. At the same time, news media stand apart from other creative industries, having a broader mission of providing public with accurate and timely information. As such, journalists’ positioning as creators is rather unique. But does the copyright law account for this particular standing? This presentation discusses the preliminary results of the mapping of copyright law provisions explicitly addressing journalists and their works, pinpointing situations where national legislators of 27 EU member states felt compelled to intervene on journalists’ rights.
Sustainable Patent Governance of Artificial Intelligence: Recalibrating the European Patent System to Foster Innovation (SDG 9)
Gabriele Cifrodelli (co-authored with Guido Noto La Diega and Artha Dermawan)
This chapter reflects on what a sustainable patent governance looks like in the age of the rise of inventive AI. To do so, we critically evaluate the relationship between Artificial Intelligence, European patent law, and sustainability with a focus on the Sustainable Development Goal 9, i.e. to build resilient infrastructure, to promote inclusive and sustainable industrialisation, and to foster innovation. In particular, we consider SDG targets 9.1, 9.2, and 9.5 for their emphasis on equitable access to innovation, inclusive industrialisation, and an imperative to consider the national circumstances of developing countries. While the contribution of patent law to SDG 9 may prima facie appear as straightforward – both are all about promoting innovation – we problematise this relationship by shedding light on the unsustainability of patents. In Section 1, we analyse patent data related to climate change mitigation technologies to discover that, under the European Patent Convention, there has been a significant growth in AI-related patenting, but that developing countries are being left behind. In Section 2, to overcome the decreased access to innovation stemming from an inventive step requirement that does not match the reality of AI-powered ingenuity, we focus on AI datasets and suggest a recalibration that revolves around the concept of Therapeutics Data Commons. In Section 3, we suggest a more nuanced understanding of AI inventorship to include Global South perspective.
Generative AI and Intellectual Property: Assessing the Regulatory Landscape of the Terms & Conditions as a Start for Responsible Innovation and Adoption (themed session)
Gabriele Cifrodelli and Joséphine Sangare
The rapid advancement of artificial intelligence (AI) in recent years has brought about exciting opportunities and challenges for the regulation of this technology. One area of particular interest is the regulation of generative AI (or foundation) models, which have demonstrated remarkable capabilities in generating human-like language, images, audio and video. However, these models also pose significant ethical, legal, and social implications, including concerns around bias, privacy, accountability, and intellectual property.
The models that are addressed in this study are divided into three categories on the basis on their output:
• Text-to-Image (T2I): Lensa, Midjourney, Nightcafe, Stable Diffusion. The choice to undertake the analysis of their Terms of Service (ToS) (and – in minor part – their Community Guidelines) derives from the fact that perhaps these are four of the most common Generative AI available on the market. A market which is not a virtual space limited to artists but includes the public at large and thus users from different backgrounds and expertise. The focus here is on those provisions contained in ToS that relate to copyright and other IP issues, since the product offered by these services are images (photo, drawing, painting, etc..), and this definitely entails some concerns with regard to – first and foremost – the ownership of this kind of output.
• Text-to-video/audio (T2V/A): the UK based Synthesia, which could be used to transform text to voice and also providing compatible video templates; US based Gen-2 from Runway, which can generate novel videos with text, images, or video clips; US based model Colossyan which create natural-sounding voiceovers from more than 70 languages. Also in this case, since the product offered by these services is of “an artistic nature” (audio and video), this definitely entails some copyright issues which may (or may not) be addressed in the relative T&Cs.
• Text-to-text (T2T) legal services: DoNotPay, Clio (Themis Solutions), Harvey, Firmsy, Vizir, Kira, Lawgeex, Ontra. Several services have emerged offering the automation of responding to routine legal requests on the basis of the service provider’s case and solutions data base. The applications are based on closed-code and operate on a prompt-to-text basis. The output is generated based on generally available legal information and the information by the clients submitted specifically to adapt the output to the products of the client. This can entail – once again – copyright and other IP issues.
The analysis for each of the aforementioned models’ ToS is led by the following research questions:
1. Who owns the copyright over the outputs and (if any indication is found) over the inputs? Is it a proper copyright ownership or a particular type of licence?
2. If a copyright infringement is committed, who is responsible (e.g. user, service, etc..)?
3. Is there any procedure in force (e.g. notice and takedown, filtering, etc..) to avoid or at least minimise the risk of copyright infringement and any other breaches of these services? If yes, which ones?
Who gets to be an author? An analysis of authors’ earnings and professional working lives
Amy Thomas (co-authored with Michele Battisti and Martin Kretschmer)
In the latest UK Authors’ Earnings and Contracts 2022 report, we find that an author’s creativity is sustained through a complex relationship between intrinsic motivations and economic incentives to create. Authors describe an almost spiritual, mythical inspiration to create, and a passion for their craft that makes their participation in this industry almost inevitable. At the same time, amidst the worst cost of living crisis in living memory, authors also report a, perhaps more banal by comparison, need to ‘keep the lights on’.
We explore the possibility of a cyclical relationship between these two opposing motivations; that the love of an author’s craft has been used to justify a perception that they are altruistic, justifying disorganised and patchy routes to payment. Whilst this reality seems at first indiscriminate, we find that writing is not an equal opportunity occupation; as with many cultural markets, writing is not free from systematic bias when allocating rewards.
As such, this presentation asks: who gets to be an author? Who is enabled to both meaningfully participate in, and sustain, participation in this segment of the creative economy? Which of these key opposing motivations ‘wins out’? Using empirical evidence from the 2022 report, this presentation will consist of an analysis of the characteristics of UK authors, with particular emphasis on demographics of gender, ethnicity, age, location, and education levels. This presentation will give an overview of the earnings of UK authors in 2022, with a particular focus on levels of inequality between different demographic groups. To capture the subjectivity and perception of an author’s professional life, this presentation will also explore the rich, qualitative data surrounding their motivations and experiences with inequality.
This work is part of a larger stream of CREATe research on creators’ and performers’ earnings and professional lives.
Regulation of Digital Access to Knowledge – The Uneasy Case of Copyright and eLending
Matteo Frigeri (co-authored with Peter Mezei)
In the past two decades, the evolution of digital copyright has contributed to the erosion of legal ownership in the digital world – replaced by licensed access (see C-263/18) – with the law demonstrating a limited ability to adapt to new forms of digital consumption. As a result, copyright law now significantly diverges in its regulation of access to knowledge in the physical and digital world – an observation particularly evident when looking at how libraries operate in the digital space. This is so despite the CJEU’s attempt in C 174/15 to bridge this gap by extending the concept of lending to cover the making available of eBooks under some circumstances. This article will explore the reasons why this landmark case failed to have any practical effect on the abilities of libraries to lend eBooks to the public, and what policy recommendations would be necessary to ensure the effectiveness of the judgment.
Copyright Governance by and of Algorithms: an Analysis of the Music Streaming Industry in the UK
In a platform era, where millions of music, movies, books, and many other types of creative works are easily available online, algorithms are shaping a new landscape for copyright governance. Online platforms have increasingly used algorithms as a governance tool to regulate and influence the circulation of and the access to copyrighted material on the internet. Until recently, legal discussions about platforms’ use of algorithms have focused on their role in removing and blocking unauthorized content. Currently, there is also a growing concern among academics and governments about platforms’ algorithmic recommendation systems. While there is a large literature on copyright content moderation, there is still a lack of research on the relationship between algorithmic recommendations and copyright. Drawing on the concept of governance by and of algorithms, first I conducted a document analysis of the material collected from the ‘Economics of Music Streaming’ Inquiry, organised by DCMS Select Committee of the UK Parliament, followed by a doctrinal and legal analysis of current legislation, scholarship, regulatory proposals and policy documents related to copyright and platform regulation in the UK. In my document analysis, based on copyright stakeholders’ perceptions about algorithms, I found that the main implications of algorithms in the music streaming industry are related to their impact on creator remuneration, creativity, music diversity and music consumption. My doctrinal and legal analysis showed that, in order to control and shape the use of algorithms by online platforms, the UK Government suggested that improvements in algorithmic transparency, allowing greater oversight of platforms’ algorithms, whether through self-regulation or statutory regulation, might be a solution. Although this paper focused on the UK, it is reasonable to assume that the issues are similar in Europe and across the global music industry, considering the global nature of the main DSPs. From a theoretical perspective, my main contribution is to the further development of the literature on algorithmic governance by providing an illustration of the impact of algorithms on copyright and the music industry and insights for further research.