Book Review : What if we could reimagine copyright?

Let's fix copyright.
Artwork by Prime Altemus 

Have you ever wondered 'what if we could rewrite copyright' but did not let your imagination run wild, thinking that copyright law was a lost cause anyway? If so, Giblin and Weatherall's latest book‘What if we could reimagine copyright?’ should be next on your reading list (full electronic version available here).

This Kat bets that even the most ‘copyright skeptic’ of our readers would read this edited collection cover to cover, if only they dared to venture into the darkest waters IP law has to offer: imagined copyright. Fear not, this Kat professes, for there are no esoteric paradigms or convoluted rhetoric in sight with this book. Quite the contrary, this collection of essays put together by Rebecca Giblin and Kimberlee Weatherall is wonderfully clear and is accessible to readers with limited expertise in copyright law.

The best thing about this book is perhaps the fact that you do not need to have much 'faith' in the copyright framework in the first place to be taken by its discussion. Chapter to chapter, international experts review and propose surprisingly pragmatic suggestions to reform our copyright laws. It is a refreshing change from the usual ‘doom-and-gloom’ which often taints the copyright literature, with its tendency to, as a matter of habit, dismiss any ideas of fundamental reform. Giblin and Weatherall dedicate their collection ‘to everyone who believes we can fix copyright’. Count me in.

Pursuit of the public interest

The contributors to this volume do not always agree on what copyright ought to ‘do’ or how far it should ‘go’ but they all concur on one thing: copyright should strive to defend and protect ‘the public interest’. Reading these last three words, you have might have had the following instinctive response: ‘Oh dear, not that thing again’. If you have, do not worry, the editors have accounted for your frustration in their introduction.

Public interest? Not that thing again!

Giblin and Weatherall's opening chapter briefly recounts the ways in which the notion of ‘public interest’ has been shunned by scholars, lawyers and economists alike, as an empty concept offering no practical relevance in practice. Although the editors acknowledge this shortcoming, they stand strong in defending its value in the context of copyright, siding with Ginsburg on it (p.19).

To keep the public interest as a valuable cardinal principle, they argue, we would have to define the notion of ‘public interest’ in isolation from ‘the vested interests [which] tend to dominate and distort group interests at play’ (p. 14). This ‘stripping away’ must begin with our existing frameworks, so that we can start afresh in defining new policy goals (p. 14). In their place, Giblin and Weatherall anticipate a copyright model that would be driven by a rationale blending instrumentalist and naturalist theories among others (p. 16). Whilst they do not pretend to have found the perfect definition for the ‘public interest’ our re-imagined copyright law should strive to serve, their draw their bottom line on the consensus that ‘we have a shared interest in encouraging and supporting creativity; in recognizing the rights and interests of creators, in a rich and accessible culture, and in technological and economic progress’ (p. 18). This goal can only achieve if we attempt to devise the law from the perspective of every stakeholder, including in this group creators, users, educators and publishers at the very least.

Despite the editors’ efforts to formulate the simplest, least biased, manifesto for copyright, one might wonder whether they are not in fact perpetuating one of the most fundamental prejudice of western culture onto which copyright law is based: assuming that more cultural ‘noise’ (read accessible creative or cultural expression) is desirable. At least, this is how I first interpreted the authors’ declared goal: ensuring ‘a rich and accessible culture’ in order to achieve ‘technological and economic progress’. (As I write this, I am aware that I might have projected my own ‘western’ bias onto Giblin and Weatherall’s proposition, a point which they address in their introduction looking at critical frameworks, such as Ho’s representative theory, which help freeing thinkers and policy-makers of their own prejudice, or ‘privileges’ as they put it).

Some have contested copyright’s lack of appreciation for ‘silence’ building on Foucault’s and Buddhist’s critique of western culture’s propensity to underestimate silence as a form of expression or dialogue (see Matt Williams pp.73-81). Silence, understood as valuable outcome, does not feature in the copyright framework. Neither does it, it seems, in this edited collection, which seeks to have more works available and re-usable for more works to be recreated in turn. Should a (re)imagined copyright make space for ‘silence’? Would it be a useful value, or yet another concept too difficult to grasp to be meaningful in practice?

Some of the key themes covered in the collection

The individual contributions to this volume have answered by the question ‘if we redesigned copyright from scratch, what might it look like?’ covering an impressive range of topics. The subsequent comments summarize some of the volume's key contributions.

This Kat's (re)imagined copyright
Image by Ronald Searle
from 'The Big Fat Cat'

Autonomous art

In his chapter, Martin Senftleben envisages a copyright model that would account for the arts’s inherent resistance to rationales of commercialisation and mass-dissemination. Senftleben takes us back to the basics of how ‘the arts’, as a field, define themselves as ‘autonomous’ from commercial success, and in that way are incompatible with the logic of copyright as we currently understand it. To address this conflict, Senftleben proposes two things: recognizing a right to transformative use going beyond what the quote and parody exceptions allow (p. 39-50); and refining remuneration mechanisms to have, for example, collecting societies re-direct funds to independent, less commercially successful, creators (p. 65). 

Copyright as access right

Christophe Geiger proposes to frame copyright as an access right rather than as a legal right to exclude. As radical as this shift in focus may read, Geiger stresses that it is in fact compatible with the core rational of copyright (of course) but also with the legal frameworks surrounding copyright such as human rights. He concludes by putting forward practical measures which would contribute to re-calibrating copyright as an access right such as the recognition of users’ rights enforceable by Courts (pp. 94-96), enforcing a ‘three-step-test to gain access to copyright protection’ (pp. 97-98), and a fair remuneration for creators by adapting contract law or introducing statutory licenses to such end (p. 207).

Conditions to copyright protection

R Anthony Reese’s contribution tackles the infamous question ‘what should copyright protect?’ in a (re)imagined copyright. The chapter explores various parameters that legislature (his preferred method of norm-making in this case (p. 119)) may take into consideration to confer copyright in the future. Those include concepts of: ‘independent creation’, ‘creativity’, size or fixation. In many regard, Reese’s recommendations would confirm existing rules of copyright. On the question of 'creativity', Reese could have delved by discussing Geiger’s proposal to make use of Buydens’s theory of quasi-creation, mentioned in the preceding chapter.

Reese’s main contribution lies in his recommendation to exclude from protection two kinds of subject-matter: ‘edits of government’ (p. 129-130) and ‘subject-matter protected more appropriately elsewhere’ (p. 133). Otherwise, the author concludes that his (re)imagined copyright would not be much different as far as the conditions to copyright protection is concerned.  In his view, ‘the public interest by protecting only works within that subject matter that are independently created, fixed and minimally creative, and that contain an appreciable amount of authorial expression’. Fixing copyright law would lie somewhere else.

Copyright as a single 'use right'

Re-imagined Kat

In his piece, Jeremy de Beer does not fight the liberal nature of copyright law. Rather, his reform proposals aim to improve the function of copyright as a tool that operates in liberal markets. De Beer identifies copyright’s ‘bundle of rights’ as the cause of much friction in transactions and looks at replacing it with a single, streamlined, ‘use right’ to avoid ‘royalty stacking’. Although all stakeholders would benefit from low-cost simplified transactions, de Beer recognizes that implementing a single ‘use right’ is unlikely to lead to a fair distribution of the benefits yielded by copyright. He writes ‘Free markets are not known for their ability to achieve distributive justice’ (p. 162). For this reason, other measures will have to be put in place to introduce distributive justice in his (re)imagined copyright. De Beer proposes four mechanisms: stronger users’ rights (rejoining Geiger on this point); the formation of stronger contracts through collective bargaining;  class proceedings to defend individual creators’ interests; and, certification schemes encouraging ‘fair trade’ branding to inform consumers and incentivize a fair distribution of benefits by intermediaries.

Duration of protection

The question of copyright duration is also of the party in this volume, and covered by none other than Rebecca Giblin herself. For provisions on duration to stay true to the many underlying rationales of copyright, a two-tier term system would be preferable, whereby authors would be given an automatic fixed initial term of protection, followed by a second term of protection granted upon registration by the artist. Giblin names this second stage of protection ‘the creator right’, and frame it as a reward stage, the first term of protection being understood as ‘an incentive stage’. Giblin’s proposition brings back the question of registration in the context of copyright, which is further explored by Dev S Gangjee in his chapter ‘Copyright formalities: A return to registration?’.

Fixing copyright: Getting the moon?Image by Ronald Searle

Summing up

Whist the title and premise of this volume may read as an encouragement to make tabula rasa of existing copyright laws, none of the contributions actually propose to do so. They all envisage working with the current system, rather than against or without it. In doing so, their proposals tap into the flexibility existing within the current copyright framework, a flexibility we might tend to underestimate. After all, all copyright law would need, it seems, is a shift in thinking. This edited collection is the preamble of such a movement, which this Kat hopes will catch momentum and encourage new, bolder, proposals for reform to emerge. 

In the meantime, Giblin and Weather ‘What if we can (re)imagine copyright?’ is a must-have for the 2017 reading lists of any teaching programs featuring copyright. The collection’s original approach, clarity of writing and breadth of topic make for an comprehensive book accessible to undergraduate and postgraduate students alike. ‘What if we can (re)imagine copyright?’ is also within the reach of  anyone interested in copyright reform who may not have an extensive legal background. 

The book: Rebecca Giblin and Kimberlee Weatherall (eds), What if we could reimagine copyright?(Australian National University Press, January 2017) Online version: FREE. Buy Print: $53. Pages: 332.  ISBN (print): 781760460808 ; ISBN (online): 9781760460815.