Soul-sellers and svengalis: notes on SABIP’s copyright/contract report

The research commissioned by the Strategic Advisory Board for IP Policy (SABIP) in the UK has become an important part of the IP landscape over the last 18 months.  I don’t know how it’s going to fare in this age of quango-criticism, but right now there are various projects in progress.  One of them that I was particularly interested in was about copyright and contracts. This particular project was led by Martin Kretschmer, director of CIPPM at Bournemouth University and its final report, The Relationship Between Copyright and Contract Law, has now been published.  Here’s the executive summary and the full report, or options to download separate chapters.  It’s made up of three long papers / literature reviews and an overall summary.  The bibliography is – as you might expect – extensive.

It’s a very wide-ranging report.  (And bonus points for the first footnote being to Johnson & Post, an old favourite in cyberlaw).  In particular, it should be noted that one of its significant concerns is the type of non-negotiated agreement that governs the relationship between a provider and a user after the purchase of protected creative material, as well as the more conventional territory of the contractual situation of creators, performers and so on.  I intend on using it as student reading material for IT/Internet law and also for a module we teach on Commercial Aspects of Media Law.

Here are some points that I found particularly interesting or useful, in no particular order.  It’s a very thorough piece of work – although it would have been fun to see what the authors made of the contract/license debate, which is certainly coming to a head in a number of US cases (e.g. Jacobsen v Katzer, now settled), or the EULA issues raised in MDY v Blizzard and the issues highlighted through Amazon’s Orwellian mess.  But this could well have been beyond the tender, so we should turn to my recommendations and highlights, which are (with a bias towards paper 3 on end user / Internet issues given my own interests):

  • Helpful ‘creator profiles’ of two examples (an electronica artist and a children’s book illustrator) (Kretschmer, paper 2, pp. 46-7 of full report)
  • A table on ‘unfair DRM’ (Derclaye & Favale, paper 3, p. 139)
  • An analysis of exceptions in the US and EU, with further discussion on member state transposition in UK, Ireland and Portugal (paper 3, pp. 87-104)
  • A very readable summary of the role of contracts in restricting ‘user freedoms’ (paper 3, pp. 105-108)
  • The wonderfully tantalising comment (after discussion of click-wrap cases in the US) that “rulings by European courts on similar circumstances are still to come” (paper 3, p. 116).  And the footnote to this point discussed the NPG/Wikipedia issue with links from Technollama (Andres Guadamuz) and Francis Davey!
  • An argument about the application of ‘fairness’ criteria to copyright contracts (whether through the removal of the exclusion of copyright from the Unfair Contract Terms Act or otherwise (paper 2, p. 77 and paper 3, pp. 122-124).  [On this, note that BIS is currently consulting on the UK’s position regarding fairness in the European directive, informed in particular by the Supreme Court’s decision in OFT v Abbey National]
  • A roundup of developments and academic work on collective societies and copyright, highlighting the cost of administration and the ultimate regulatory role of these agreements (Watt, paper 1, pp. 35-37 )

Full report from the SABIP website.

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