Comment by Dr Elena Cooper (HERA/ University of Cambridge)

I really enjoyed both of these papers and I prepared for this response on the basis of the written papers and where there are things you didn’t have time to mention I’ll just fill in on there. So I should say first of all I’ve done a small amount of empirical work myself involving interviews and for that reason I know how time consuming it is. On that level I really respect it for that. But if I’m to say while I feel this work is incredibly valuable I probably need to say a few words about the bulk of the work that I’ve been involved in.

Most of my work has not actually been empirical at all; it’s been historical, so actually looking at artistic copyright in the 19th century. And the art historical literature that I respond to particularly the work of Steve Edwards on photography is inspired by the methodology of history from below. So this idea that’s often attributed to the work of E P Thompson. This is an approach which, if we could sum it up, it aims to capture the diverse voices that would be absent from a history that just concentrated on the kind of conventional protagonists in legal history. Not just getting at those voices that are absent, but also capturing the complexity of those voices, so resisting determinist assumptions, for example on the basis of class.

So for me the empirical work that we’ve heard today, and I should say in the second paper one of the things that you did at the conferences was to get at these, I think you say, the unconventional voices that are present at the conferences as well. So it’s almost like a history from below but about today and recent times. But of course with the added advantage that you get to speak, first hand, to those people, unlike myself crawling around in an archive trying to find their pamphlets.

So, for me this is where the value of this work lies. And I really feel that the richer the scholarship is here the more informed debate we can have on copyright’s future in making that history for tomorrow. And then having really located the value of these papers in my experience of legal historical research I want to use that experience to maybe point to one of the dangers that came through, certainly in the written version of the first part of the paper, but this is a small point that really is how you’re dressing this up with history and that doesn’t get at the substance of the great empirical work that you’ve done.

Adrian Johns has written a critical piece about how IP lawyers often use history. And one of the criticisms is how lawyers often fail to get at how concepts are dynamic, and how they actually change through time, and with this in mind, and while I really enjoyed the fact that you’re referencing back to debates about piracy in the past, so you’re considering the language of piracy today, I think the way you do so almost infers that piracy has always had a stigma, and it’s always had this kind of criminal connation. I think you talk about an inherited metaphor from the past, something that’s historically embedded in our language. And I thought a point that history is complex of course, and while the historical examples you’re referring to do indicate that continuity that you’re looking for there’s also other literature out there, particularly the work of Catherine Seville. She’s looked at points in the 19th century so when a time when piracy meant nothing more than infringement. It didn’t have that stigma. So what I think I’m trying to say, I’m building on the complexity that you’re trying to reveal about today so you’re exposing that complexity of the voices of today, perhaps guard against simplifying the past, and if you do so the past may well liberate the way we think and help the message that you’re trying to put across.

And then I just wanted to end with two final observations, one on each paper about what this work might mean for the future. So, if I start with the second paper, what I really liked was the way that you captured the dynamics of industry strategy through that 10 year time period. I think that was great. And this idea that solutions that the industry proposes really change over time, and particularly it seems to reveal that in this case the industry’s perceived solution was quite short lived. So as you explained, legal protection relating to DRM was thought to be absolutely the answer and a few years later they’ve abandoned that and maybe there’s something in that for legislators for keeping that in mind when they’re deciding to legislate to industry led solutions.
And on the first paper I think for me one of the most interesting observations was the fact that you said the infringers that you interviewed all agreed with the general principle of copyright. They supported the general tenets of copyright and with that in mind maybe further work could be done to uncover what copyright related business models they would actually support.

Comment by Dr Daithí Mac Síthigh (University of Edinburgh)

I enjoyed the papers, I thought they were very engaging and I had the pleasure of reading them in preparation for this, and reading them perhaps in a different way having been asked to step in. And I want to say a couple of words about each of the papers.

In particular in the context our own discussions around how we would approach our research, I thought on the first paper there was a clear defence of the value of qualitative research, a lovely encapsulation of it this was not about the distribution but as the paper says it’s the portrait of a range of claims and the richness of detail. But what I thought was worth highlighting in this discussion was a point made towards the end of the paper where it draws upon an argument made by Des Freedman about not only relying on statistical quantitative information in terms of law reform debates, and in that context Freeman was talking about media plurality and about the importance of abstract values. That just because we can count doesn’t mean that will answer all the questions that you might have.

And in this work here I think that’s quite linked to what I would read, I think, a criticism or acknowledgement of failure of the democratic process where the reason in some ways that this research tells us quite a lot of new things or things that have been played down is because the existing representative democratic structures that we have for dealing with copyright law have not carried out that duty. And to legal scholars who make so many assumptions about constitutional controls and the public interest in being encapsulated in the actions of Parliament, that’s a very challenging idea, but it’s also a very fruitful one for research, again within academic work on law the assumptions that many of us still unpick around the reasonable person, the man or woman in the street, the public interest, objective and subjective tests, again we see through focus group research an opportunity to discuss what might be meant by that.

But it was interesting in the paper’s conclusion the recommendation in the large part is that policymakers need to get their act together which is to suggest in a way that if they had got their act together the research gap wouldn’t be as clear. So your gap has highlighted a need not just for more research but also a rethinking of how the debates go on. And I think compared with some of the other work that we’ve seen today we’ve seen that there’s an opportunity to test claims in different fashions. I just wanted to pick one example of this. Within the groups there was various discussions of things like the technical ability to use a file sharing platform, and whether it was difficult and different demographics even might have responses to that. That’s the kind of thing that perhaps some of us might say we can test that ourselves, we can sit down and make a claim on that. Others might say you could line up 20 people in a lab and give them various bits of software and see how they do and rank it on a scale. I think what we’ve seen from arguments like that made from the focus groups is that often these might be hunches and what we can do, particularly in terms of persuasion is, without even the necessity to put everything into a lab environment, that we can develop that and we can discuss it and we can perhaps test the assumption that we might have had. So I thought that was particularly important.

I want to say something else about that paper but I just want to say a couple of things about the other paper first. Again, we’ve got a different approach here, the longitudinal argumentative discourse analysis. I can’t believe you lost the opportunity to abbreviate it to LADA, I thought that would have been a good catchy way to talk about it. There was an interesting approach in this paper which does a lot to commend itself to an audience of mixed disciplines, there’s a very good explanation of what it is that you and you co-author did including things that are often not acknowledged by those who are working on this all the time which is you even told us the name of the software. And that’s important, particularly for those who are approaching work for the first time, and the annexes were helpful there too.

The approach of looking at what happened as well as how it was reported is of course a significant one. Where I would imagine a debate would occur whether it be within the core audience of the paper or within a wider audience would be the way in which claims are noted and then classified. You were very careful to remind us the conservative is a label of convenience, and it’s something that I think work of this nature can spark on immediate debate over did you call it the right thing, and how was it categorised. In my limited experience of looking at consultation responses and trying to code them, one of the difficulties I ran in to and it more or less sunk a particular paper was that that exercise became self-fulfilling because the only claims I could identify were descriptions of the position and I ended up with having one set of things that would be said by telecoms companies which as it turned out were all said by telecoms companies and therefore my chart was not as elaborate as the one that you ended up with.
But there is always that risk that if we are dealing with a process of induction rather than perhaps an external source of claims or values that can be a tricky process. But again the approach to disclosure taken in the paper is helpful because it means that if we’re debating the labelling in a way we’re already having the type of debate that you would want us to have because we have bought in to the exercise and the appropriateness of what’s doing and maybe I would have categorised this the other way and even getting resistance scholars to that point is an important thing to do.

I thought across both papers there’s an interesting question to be asked about how the work sits alongside other work. In both cases I certainly found myself going and looking up, either in the case of the second paper, the background work on the method and on political claims, and in the case of the first paper which refers to this work confirms or complements say some of the recent quantitative work on file sharing again that requires a certain amount of effort on the part of some readers. And you can see how there’s kind of a gathering storm here where we start with perhaps a criticism in both areas of the way in which the political process is dealing with it, and now we see bit by bit the research agenda get stronger. One of the tasks for us I think is to acknowledge how much has happened and to be able to compare the policy prescriptions or the observations that might come out of different approaches to research. That’s something I think certainly towards the latter stage of CREATe is going to be a real challenge for us.
So I hope those comments are trying to think of the way the paper would be read from different points of view rather than necessarily personal experiences of this particular research. But I do thank the authors and through you your colleagues, because I know these were both joint authors and team efforts for giving us quite a lot to think about and hopefully also to inspire other approaches to our own research.

Comments from the floor

Prof. Barbara Townley (University of St. Andrews): Thank you for two very interesting papers. I’ve just got quick questions for both. On the first one, I thought you’ve got some really valuable and interesting data. What I wasn’t quite clear about is your structuring of the findings in terms of those three headings and whether that’s making as much of the material as you have. You know, it sort of rational, complex and cynical. And because you’ve made reference to Boltanski and Thevenot and you’ve picked out some of the civic, the efficient, the market etcetera in the responses for justification and you’ve also got some of those response by the users. I thought the thing about the domestic, if you’re using that in a group, well that’s okay that’s just like inviting members of the family. I thought that might give you far more punch with the material that you’ve got and have a point of conversation across each. Actually, that’s more of a statement, than a question isn’t it?

On the second paper, again I thought that was very useful longitudinal study with some really interesting…the cyclical nature of these things I thought was very interesting. My question there is, you’ve relied on material from the press, and so what’s the issue about the degree of representativeness of the discourses that get picked up, or were that expressed, versus those that get picked up and reported in the press where there might be a bias one way or another?

LD: First of all what we did when selecting the news outlets was that we deliberately selected both regional newspapers for each of the cities where the events took place, so that we had one newspaper that we expected to cover the event more closely and also we chose two national newspapers, also to see whether the events even made it into the national news. And in these cases we at least chose both a more conservative and a more progressive newspaper in the national, but in the local newspaper case we often had to choose the one dominant local newspaper, independent of political bias so to say.

On the other hand we are definitely convinced that there is some form of bias in terms of what was picked up and what not, but in a way that is not a problem because that’s part of the result. So what didn’t make it to the media, what wasn’t picked up isn’t present at least not in the public media discourse. This doesn’t mean there are not other areas and this is of course a limitation of the study but you cannot assess everything at the same time. And I think it would be worthwhile to, for example, compare the media discourse with an academic discourse and maybe then again with a user discourse. I think this would be very interesting endeavour to maybe even do some kind of meta study or TO put together the corpus of three different papers and then make it a cross case analysis and then over time, yeah, that would be great.

Prof. Lilian Edwards (University of Stratclyde): Yeah, completely valid comment and thank you very much for that observation. There are a number of things that are played into the ways that we structure that particular paper in the way that we did. It’s the first take If you like of the user discourses and I think it was driven very much by this desire to give them a voice. So when you’re trying to give a voice to people you hesitate I think to make it over complicated and over theoretical so I think that was part of the purpose if you like implicitly in our approach to that paper. The other thing about the limitations to methodology really is that it was an 18 month study but we ended up doing the user focus groups and the discourse analysis not completely at the same time but very much overlapping and so the insights that we took from the discourse analysis weren’t always able to be taken through to the focus groups unless it was much later on. And even then to be honest we didn’t do it as well as we could have done. So, I think there are limitations there in terms of the connections across the different data sets although in the book …what’s interesting now in preparing this paper is kind of reflecting on it now from a distance, those are coming back to us, those connections are coming back to us, and in the book that we are now in the process of writing where we include all of the data in the same place that will connect those two bodies of work a bit more effectively and try to tease out some of the ways in which the discourse crosses across these two different locations in slightly different forms but nonetheless in a valid way.

Prof. Mira Sundararajan (University of St. Andrews): I found both of these panels just fascinating, so thank you for those presentations. I have a couple of comments going back to the first one in particular because in your findings I think one of the things that emerged which may or may not have been stated explicitly is that certainly in the mind of the public there is a conflation of interests between copyright creators and copyright owners, and I thought one of the strengths of that presentation was that at several points you made reference to the fact that there are such usually distinct parties, copyright creators and copyright owners, what I think would be important is to remember that the positions of those two parties are actually quite distinct and potentially different, so in fact copyright is not so much a debate between two parties as a sort of discourse among three, at least three creator, public and user. And sometimes each party plays a role in one of the other parties and their interests are all overlapping as well as distinct. So it’s quite a sort of complex framework in that sense. But I think it’s important to remember that copyright is fundamentally the right of the creator that at least is the legal framework we’re always working with. And then we get into the interesting question of the acquisition of copyright by the copyright owner and that takes us into business models and all the sorts of conflicts that both the panels have been discussing.

I’ll just make a second quick observation about that. I think it’s important for another reason too because it really points to the Americanisation of copyright discourse at the international level because we have to remember that the US is now a member of the Berne Convention and has the copyright as a creator’s right as well but that is actually a relatively recent acquisition, superimposed upon many centuries of doing things a different way where the ownership of copyright was, the sort of basic model on which the Americans understood that area of things and now where there’s so much American leadership at the international level I think what we’re seeing as the concept of copyrighters and ownership right coming to dominate the international discourse too. And I think that’s an important thing to be aware of when thinking about these studies and this information that is being gathered because it does point to a heightened degree of homogeneity in the discussion about copyright. And usually when we talk about culture we think about diversity as being a very good thing. So there’s potentially quite an intense conflict there. Thanks for your patience.

Yeah, fantastic points. I think you’re right, what we found I think is that in the industry discourses they tend to want to conflate the two things of not talking about creative workers and owners separately. And maybe that’s true to some extent of the public that they’ve accepted that discourse was true to some extent and I’m not sure how true that is. But certainly if you take something like the Association of Independent Musicians that we had their quote and their contribution, they obviously want to draw that distinction and make it apparent. I think you’re right that it is a really crucial one, especially when thinking about something like moral rights, someone’s moral right over a creative work.

Did you want to say something about the international context?

Prof. Lilian Edwards (University of Strathclyde): It wasn’t so much the international context but it was just that in the focus groups discussions users did differentiate, but not in a formal sense so they would say, well you know, I do creative work and it’s kind of casual and I don’t mind people sharing it because it generates the interest so you know here’s a creator identity. And then when they argue about the industry requiring them to be moral about their engagement with creative work by paying for it then they say but hang on you’re not moral, I know you’re separate from the artist and you don’t pay the artist enough money for their work anyway so don’t blame it on me it’s about you. So, there is a differentiation and it’s not formal in that sense, and this goes back to a point I didn’t make but users are a bit confused about copyright because it is confusing.

Prof. Daniel Zizzo (University of East Anglia): Very interesting work, and I’m talking as a quantitative person, it’s very interesting this qualitative analysis. I’m also particularly interested of course in sort of methods, maybe not methodological, but method type events such as this one. I’m interested in ways there could be complementarities between qual and quant type of work. And I’ve got three thoughts on this.

One thought really relates to the way in which, I entirely appreciate and accept and I think it is important that you do mention it because it’s entirely true that you can’t make conclusions about distributions so you’ve got a range you can’t make conclusions about distributions.
Still I was wondering whether depending on where those focus groups, what kind of demographics they represent, clearly there is some aggregate information about importance of that demographic for copyright infringement phenomena, and more generally. So you know there may be some inference that can be done there with all the appropriate caveats and qualifications of course.

The second thought that I had really related to your paper and I was wondering whether one could generalise what you do because surely if one was to do a systematic search of press releases, I’m saying systematic so that then you have all your political ….you can control for that quantitative analysis, but taking your analysis as a starting point one can imagine how one could take over the years a lot of information of the press in a wide range and then one could do some quantitative analysis of this qualitative data. So it could be a way of combining a mixed method approach to this type of problem.

And, the third thought really is perhaps more personal and more self-interested and really relates to the fact that for experimental work it would actually be quite interesting to have a question or type of measures and one question or type of measure could be in terms of values and it could be in terms of justificatory arguments to identify then how it may or may not link to behaviour. Bearing in mind all what you’ve said about qualification about exclusion etcetera I was wondering whether you have any tip on how, if I were to take your work which I hope you’re going to send me, how I would go about doing that? Thank you.

GM: Can I respond to the first part? You’re right, we did really emphasise this point that we couldn’t talk about the distribution, we can only talk about the range. But I think you’re also right to say that obviously we were looking at different demographic groups and out of that can come some ideas about differences amongst that group and possibly a distribution of views amongst them. And I think thinking about the relationship between different types of research what would be really valuable, sometimes people say oh we should do a survey, quantitative research, and then look at it in qualitative depth. I often think it’s better to think about it the other way around, it’s better to do qualitative research so we actually come up with sensible questions, or sensible types of hunches about possible trends across demographics and then we go and test it rigorously and look at the distribution.

LE: I think one of the things you might find interesting is the actual data itself, so the raw data, so immediately what comes to mind is this difficulty of external validity with experiments, but if you take let’s argue a composite scenario from one of the focus group discussions so for example, I’m a mother, I buy Fair Trade, I have five kids and I want to download music for free because I can’t afford everything else and you manipulate one variable within that scenario then you do to a degree give a picture of the complexity of life while you manipulate the one variable. One might argue that this is a scenario that is grounded in a genuine story therefore it has a little bit greater validity, but I think maybe going through the raw data would be of most interest in that respect.

LD: If I can add one more sentence or two, one sentence is that I think it would be interesting, I think the problem is really the coding because it was a lot of work and we did it, we were three people we also cross checked so it’s not completely by accident what we code, so if you add a lot of data to the sample you really would have to engage several student assistants and put them in a room and not let them out. But really we had to code not just, also the direction, we had to identify the claims then we had to re-identify them and the we had to also connect them to the actors that are voicing them so I think that is one thing. And last thing is I thank you for your comments and I was right to come along.