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Just Copyright? Copyright History and Policy

About this project
Elena Cooper

Lead investigator(s):
Dr Elena Cooper

Start Date: 1st October 2014
End Date: 30th September 2016


How does research into copyright’s history shape our understanding of copyright’s nature and its policy objectives, in both the past and more recent times? This question is explored through two discrete pieces of work.

First, the project responds to recent scholarship (Tomas Gomez-Arostegui’s Copyright at Common Law in 1774, CREATe Working Paper 2014/16, original published as 2014, 47 Connecticut Law Review 1) that claims that eighteenth century copyright history is of relevance to copyright policy debates today. Through a public lecture, roundtable debate and Working Paper, the project explores answers to the following question: what is the point of copyright history?

Secondly, the project involves original research into the relation between criminal law and copyright in the past and recent times; through a close reading of criminal law decisions in the mid nineteenth century and related legislative developments, the project seeks to cast fresh light on how we understand aspects of modern copyright and its policy. Today, copyright is thought to be primarily the domain of civil rather than criminal law; the steady increase in the role of the criminal law to combat intellectual property infringement since the late twentieth century has been a topical issue at both national and international level. In providing a historical perspective on these developments, this project counters the assumption that the role of criminal law in the domain of IP is confined to recent times and asks how this unappreciated dimension to copyright history impacts on how we think about modern copyright and its policy.

Project outputs include:

What is the Point of Copyright History? – this CREATe Working Paper considers the interplay between copyright policy today and historical research. It provides a record of the discussions at a two-day Copyright History Symposium held at the University of Glasgow in March 2015, comprising  a public lecture delivered by copyright historian Tomas Gomez-Arostegui and a roundtable discussion led by five leading academics (Howard Abrams, Lionel Bently, Oren Bracha, Mark Rose and Charlotte Waelde) chaired by Hector MacQueen. 

Photographic Copyright and the IP Enterprise Court in Historical Perspective (Legal Studies, forthcoming) – in this paper Elena Cooper and Sheona Burrow argue that an in-depth case study of the enforcement of copyright in photographs today by freelance professional photographers, is enriched by casting that experience in historical perspective. While noting parallels between past and present, the article argues that a broad historical vantage point also enables us more critically to assess what is different about the nature of photographic copyright enforcement today. The paper was pressented at  a CREATe Studio seminar

Landmarks on Intellectual Property Law, (Hart Press, ed. J. Bellido, 2017) – Elena Cooper’s paper in this  volume explores the little considered relation between criminal and civil law in the only House of Lords decision on the criminal law provisions of a current intellectual property statute (R v. Johnstone, 2003), setting that within the context of original historical research into criminalisation from past times. History, this Chapter shows, can also help us to identify more deep-seated roots to problems faced by the law today, that might otherwise escape our notice.

The output for this project was facilitated by a rich scholarly environment, which saw the University of Glasgow host the leading conference in the field: the annual workshop of the International Society for the History and Theory of IP, in summer 2016, drawing scholars from a variety of disciplinary backgrounds from all over the world. It was also furthered by the opportunity to present historical research at two conferences: the British Crime Historians Symposium (Edinburgh, October 2016) and European Policy in IP (Oxford, September 2016). The project also connected with audiences beyond academia.

Copyright and Art Forgery: The Painting that Challenged the Law – this presentation was given at the CREATe Festival and examined the intricacies of a nineteenth century ruling about the forgery of a painting by the landscape artist John Linnell. It also invited reflections on copyright history from an interdisciplinary audience (spanning experts in philosophy, education, literature as well as law), at an assembly conducted by the performance artist Kobe Matthys of Agency, Brussels, exploring the facets of a historic copyright decision .