Legal History and Cultural Memory is an umbrella theme spanning diverse areas of CREATe research: the history of copyright, trade marks, performers’ rights, competition law, legal historical methods and sources, as well as cultural heritage law, the history of cultural objects, the set of laws, policies and norms shaping their preservation and lawful use, and the legal issues affecting galleries, libraries, archives and museums (the ‘GLAM’ sector). At CREATe, these areas are united in a single theme, through a common approach to research. We are committed to the in-depth investigation of the past – whether the legal past or the past of cultural objects or cultural institutions – for its own sake, on its own terms and in its own right. Yet, having done so, we believe we should not stop there: we should also reflect on whether and how past experience can provide a critical lens on the choices we make today. We should articulate and explore, where relevant, the critical value in looking backwards before looking forwards.
The theme Legal History and Cultural Memory draws together a wide range of CREATe researchers at all levels: both permanent members of staff, CREATe Fellows, as well as PhD students.
Projector – Original illustration by vanesaurus
Legal History at CREATe
On the legal history side, since its foundation in 2012, CREATe has convened a number of important scholarly events including the international symposium What is the Point of Copyright History? in 2015, and the Annual Workshop of the International Society for the History and Theory of Intellectual Property in 2016. CREATe is also well known for the digital archive at www.copyrighthistory.org: Primary Sources on Copyright (1450-1900) edited by Prof. Lionel Bently (University of Cambridge) and Prof. Martin Kretschmer (CREATe Director), which also involves the input of Legal History and Cultural Memory theme lead Dr Elena Cooper (Senior Research Fellow, CREATe), and theme co-lead Bart Meletti (CREATe Creative Director). Primary Sources on Copyright is a digital archive of over 700 historical documents, comprising primary source material for the history of copyright, from the printing press to 1900, organised into eleven ‘jurisdictions’ (Britain/UK, France, German-speaking countries/German Empire, Italy, United States, Spain, the Netherlands, Scandinavia, Jewish law, the Vatican, Portugal and Brazil), with each section curated and analysed by a specialist ‘national editor’. Primary Sources has become a focal point for an international and interdisciplinary community of copyright history scholars. CREATe currently hosts the archive and was delighted to convene a two-day conference in Glasgow in October 2023, Fifteen Years of Primary Sources on Copyright, which included a CREATe Public Lecture: a panel of eleven national editors publicly debated questions posed by Bently and Kretschmer about the archive’s future. CREATe also supports other legal history digital resources including the Stationers’ Register Online and Intellectual Property: Oral Histories, the latter due to be re-launched soon.
In terms of current research into legal history, Cooper is currently funded by The Leverhulme Trust for the project Intellectual Property and Criminalisation: an Historical Perspective, mentored by Prof. Lindsay Farmer, which builds on her published work on the history of copyright and the visual arts: Art and Modern Copyright: The Contested Image (2018, CUP). Marta Iljadica (Senior Lecturer, CREATe) is also currently working on a Leverhulme Trust-funded project – Intellectual Property and the Built Environment – which includes the history of architectural copyright. Amy Thomas (Lecturer in Intellectual Property and Information Law, CREATe) is pursuing the Carnegie Trust-funded A Case Study of Robert Burns: Presenting a Distinct Theoretical Foundation for Scottish Copyright Law, and, through the addition of Scottish sources, is due to join the Primary Sources on Copyright project as co-editor for the UK section in 2024-5. Magali Eben (Senior Lecturer, CREATe), a specialist in competition law, is undertaking the project The Gate-keeping of Art: history and law of competition and innovation, which includes uncovering the historic role that a nineteenth century ‘gatekeeper’ – the art dealer Maison Goupil – played in access to cultural works. Luis Porangaba (Lecturer in Intellectual Property law, CREATe) is a specialist in trade mark law and his research includes aspects of the history of trade mark registration from the late nineteenth to mid twentieth centuries. Nika Abkowicz-Bieńko (PhD student, CREATe) is researching her thesis ‘Translator, Traitor, Copyright Violator’: Unauthorised translation as copyright infringement in theory and practice (supervised by Iljadica and Cooper) which includes original historical archival work into the legal history of translation.
Cultural Memory at CREATe
Turning to the Cultural Memory side, at CREATe we recognise that decisions around the preservation, access to and use of cultural memories are structured by overlapping legislation, such as copyright, cultural heritage, and data protection laws, as well as by contracts, institutional policies and social norms. Digitised cultural heritage provides a pool of materials for creators to tell stories, for innovators to train algorithms, for researchers to uncover and produce knowledge, for teachers, students and society at large to learn from our past. A key legal question has accompanied us from the invention of the printing press to recent developments in AI technology: what uses of cultural memory are permitted by law and which can be controlled by rights holders?
As regards current research relating to Cultural Memory, CREATe is currently piloting an experiential learning activity for the IP LLM students in partnership with the British Library and the British Film Institute (BFI), called IP Policy Challenge. This year’s activity focuses on the real-life challenges faced by the British Library and the BFI in relation to Artificial Intelligence, Cultural Heritage and Copyright Policy. CREATe has also entered a partnership with the nonprofit organisation Creative Commons, which includes a study on Open Licensing and Business Models in GLAM institutions as well as a Collaborative LLM Dissertation project titled Access to heritage at the crossroads of cultural heritage protection laws and copyright’s public domain.
CREATe digital resources are a point of reference for memory institutions, the GLAM sector and users of cultural heritage. CopyrightUser.org aims to make UK copyright law accessible to everyone and provides sector-specific guidance for libraries, museums and galleries, and archives. CopyrightUser.EU helps copyright users across the EU make informed decisions on copyright issues, including in complex areas such as contracts and TPMs, orphan works, and out of commerce works. CopyrightEvidence.org catalogues over 900 empirical studies on copyright, including 64 specifically related to Libraries, archives, museums and other cultural activities. A series of digital resources either developed or supported by CREATe in the past are explicitly dedicated to the Cultural Memory theme, including Display At Your Own Risk, Digitising Morgan, and the Copyright Cortex (which will be coming back soon).
Current CREATe research investigates different legal aspects of Cultural Memory. Theme co-lead Bart Meletti, after delivering a series of codes of best practices in creative reuse for the Horizon 2020 consortium ReCreating Europe, including one on immersive experiences based on digital cultural heritage, intends to produce similar codes around the computational use and analysis of audiovisual heritage for non-commercial research. A team led by Prof. Kris Erickson is conducting a Knowledge Rights 21 project investigating the interaction between technological protection measures and exceptions to copyright that would normally permit uses such as research and preservation. CREATe PhD researcher Andreas Giorgallis is currently completing his thesis (supervised by Iljadica and Dr Christa Roodt, History of Art) on Restitution of Sacred Colonial Cultural Objects with a particular focus on the 11 Ethiopian Tabots housed in the British Museum, which builds on past CREATe research on cultural heritage more generally including the work of two current CREATe Fellows: Dr Andrea Wallace (University of Exeter) and Dr Pinar Oruç (University of Manchester). Also, of relevance to the galleries and museums sector, is the recent Special Issue of the Institute of Art and Law’s journal Art, Antiquity and Law, guest-co-edited by Cooper and Steph Scholten (Director, The Hunterian, Glasgow): Donor restrictions on Galleries and Museums, April 2023. Building on the Special Issue collaboration, CREATe, The Hunterian and the Institute of Art and Law will be co-convening two events to take place in Glasgow in April 2024 under the overarching theme From Scotland to the World: an event on Donor Restrictions on Galleries and Museums (The Hunterian Art Gallery, Thursday 18th April, 5.30pm-6.30pm, and a major conference Repatriation and Museums (Kelvin Hall, Friday 19th April, 9am-5pm).
These are just some highlights of the diverse strands included in the Legal History and Cultural Memory theme. Sign up to our newsletter to stay up to date with this research theme or contact us, Elena Cooper or Bartolomeo Meletti, if you have any questions or would like to collaborate.