Ian Eagles Position Paper
Ian Eagles is Professor of Law at Auckland University of Technology
- Moral Rights: A Dead End
Moral rights are too often seen as a way of addressing the bargaining power imbalance between creators and copyright owners. In fact they are both a placebo and red herring and cannot support the high hopes placed in them by authors and artists when they first made their way into United Kingdom law. The real problems (and the solutions to them) lie elsewhere.2. Creative Reuse
The core problem here is that copyright law focuses almost entirely on what is taken by an alleged infringer not what is created as a result. Even minimal borrowings can result in liability if a court finds their role in the original in some sense a key one. (Whether judges are well placed to make creative assessments of this kind may be doubted). One of the more interesting (and unresolved) legal conundrums concerns unauthorised sequels and prequels where new authors seek to continue the original narrative where it left off or take seek to take the story back to some earlier time. This is an area I have always been interested in and on which I am currently working. (At the risk of boring you with legal technicalities you might like to read a chapter I wrote some years ago (Ian Eagles, “Copyright and the Sequel: What Happens Next?” in F MacMillan (ed), New Directions in Copyright Law, Vol 6, (Edward Elgar Publishing, UK, 2007) pp. 35-65. It gives a useful summary of how the law might approach cases of creative reuse in general and not just in relation to sequels. From memory the book is in the Institute of Advanced Legal Studies Library and probably elsewhere in the University of London system as well.)3. Group Creativity and Multiple Authors
The law as it stands does not cope well with situations where copyright works cannot be unequivocally attributed to a single individual or a group whose membership is known and identifiable. Nor does interactive authorship in the form of fan fiction and computer games sit easily within the copyright paradigm. Similar difficulties are caused when materials are contributed to by different authors over long periods of time. (Teaching materials used in a University come to mind here.) In such cases the issue is not just identifying the authors but also working out whether there is a single work or many.) The problem is compounded when the law bundles groups of works together as compilations. My colleague Professor Louise Longdin has written extensively on the copyright implications of collaborative and joint authorship as well as on compilations particularly in the digital environment.
4. Technology and Creativity
Technology can be part of the creative process and also the mechanism through which a work is disseminated once created. The law’s response is to atomise the protections it offers rather than to approach the opportunities and dangers offered and presented by new technologies in a holistic way. As a result, many of the legal rules are narrowly drawn and focus on yesterday’s technology.
5. Beyond Copyright
Too narrow a focus on copyright can be misleading in this context. Other areas of the law have a part to play here as well. Suggestions that B’s story is an authorised offshoot or continuation of A’s narrative when in fact no permission has been given by A (or more likely A’s publishers) can expose B to liability for passing off. The computer programs underlying video games may be protected by patent law and as well as copyright and even in some situations criminal sanctions.