What is our role, as independent academic researchers, in a highly contested policy-making setting? This question has previously been posed on this blog, by CREATe’s Dr Amy Thomas (Lecturer in Intellectual Property and Information Law, CREATe) speaking to the All Party Writers Group (House of Commons, December 2022) as regards CREATe’s high-profile empirical research: the use of social science methods to uncover the ‘real life’ of how copyright works in practice (e.g. the UK Authors’ Earnings and Contracts Report 2022). In a new paper, first published as the lead article in the current issue of the European Intellectual Property Review (2023, Vol. 45(8), p.p. 444-453), Dr Elena Cooper (Senior Research Fellow, CREATe) argues that, as regards the current moment in the debate of the future of performers’ rights, we should also look backwards – to legal history – before looking forwards. The text of this article is also now available for free down-load as a CREATe Working Paper through the link below.
Building on two previous Opinions published in the European Intellectual Property Review (in 2022, and with Ronan Deazley in 2016, also available as CREATe Working Papers), Dr Cooper argues that an understanding of the legal past sharpens the critical lens on our understanding of aspects of the debate of AI at the present moment. Recent debates about AI often use generic terms, such as ‘creators’ and/or ‘copyright’, in the discussion of both authors and performers; a legal historical perspective reminds us of the differences between legal protection for these two groups of rights-holders, and casts fresh light on the calls by Equity, the actors’ trade union, for a new synthetisation right (in their campaign document Stop AI Stealing the Show). To date, policy-debates about AI and intellectual property have failed to address the persisting differences in the legal treatment of authors and performers, which leave authors better equipped to deal with AI uses than performers. The article calls for that issue to be debated now.
CREATe are delighted that Dr Cooper’s article was cited in submissions made by Laurence Bouvard (a prominent voice-over artist and actress, and current chair of Equity’s Screen and new Media Committee) at the parliamentary event The Worker Experience of the AI Revolution, held at the House of Commons, in summer 2023, to a packed audience of trade unionists, policy-professionals, politicians and journalists.
This article uses legal history as a vantage point for reflecting on the current moment in the debate about AI and performers’ rights. Current debates often refer to ‘creators’ and/or ‘copyright’ as generic categories denoting both performers and authors. Legal history, I argue, sharpens the critical lens on current debate by drawing our attention to what today remains different about the legal rules protecting performers. That difference, at present, leaves performers less well placed to deal with the challenge of AI than authors and also goes to the heart of Equity’s current reform proposals. That difference should now be debated.
Full paper can be downloaded here.