Tag Archives: copyright

Copyright and expression

Dr. Emily Laidlaw (University of Calgary) and I have a joint project, as part of CREATe, on copyright, human rights and the public interest.  We’ve just published (as CREATe Working Paper 2015/04) a very extensive literature review on copyright and freedom of expression, put together by our fabulous research associate Dr. Yin Harn Lee (University of Sheffield). (All of us at some point worked for the University of East Anglia, where the project was put together).

The full review can be found here, including in the opening pages a summary, and a bibliography at the end. And here’s the preface, to give you an idea of what it’s all about. We’d love to hear your thoughts, including on where we should go from here.

The relationship between copyright law and freedom of expression has always been controversial, but this tension has deepened in recent years with the emergence of the digital environment and expansion of copyright law. As part of CREATe’s theme on human rights and the public interest, our project explores the relationship between freedom of expression and copyright, including how it has changed over time and/or depending on the business model, and whether freedom of expression needs to be reconceived in relation to copyright.

We are pleased to publish this literature review on copyright and freedom of expression. The review has been expertly researched and written by Dr. Yin Harn Lee, who was employed by the University of East Anglia while completing her doctoral studies at the University of Cambridge. Her report is the result of an extensive period of research, and regular conversations with and reviews by us. She has compiled a remarkable range of materials from around the world (both from courts and scholars), and sets out clear examples of what happens when these areas of the law meet. This review traces the nature of the debates about the interaction between copyright and free speech, treatment by the courts (focusing namely on UK (in its wider European context) and USA jurisdictions), specific scenarios where the issues are particularly acute, and current proposals for reform.

It is our hope that this literature review provides insight to the reader on what is an incredibly uncertain area of the law. We invite you to read this literature review and provide us with your comments to help inform the second stage of this project.

From our end, the literature review has certainly been revealing about the extent of the lack of coherence in law (both statutory and case law) concerning the nature and extent of a person’s right to use a third party’s copyrighted work under the umbrella of fundamental rights. It is questionable at this stage whether there is any such right in substance, although the framework is there in law. When courts have engaged with freedom of expression it is often not in the most direct fashion – especially when disputes arise within the terms of copyright law, as they are likely to be litigated on that basis by experts in that field. The human rights implications typically emerge at a late stage or in subsequent academic writing.

I think I’m a clone now

Dr. Tom Phillips worked on a CREATe project with me, as a research associate (Dr. Keith M. Johnston was the co-investigator).  Our project on Games and Transmedia dealt with a wide range of issue pertaining to law, business and these emerging creative industries – including art/business tensions, formal and informal regulation, and how risk and disputes are handled. One point that we kept coming to, from a range of starting points, was the tricky and often emotive subject of ‘cloning’ in the games industry. I had a few paragraphs on this in my article last year, but the real outcomes of these discussions can be found in Tom’s article, published as open access today (free for anyone to download) in the journal Cultural Trends.

In “Don’t clone my indie game, bro”: Informal cultures of videogame regulation in the independent sector (click to read/download), Tom reports on the history of cloning as an issue, informed by events and conversations in the games world, and academic and legal developments. The article also gives a great insight into discussions we had with a fascinating group of developers and others in December 2013, as part of the project. Tom has made use of many of the key points from those discussions, to try and provide a greater understanding of how the rights and wrongs of cloning are discussed within the industry (or industries). He concludes by wondering whether we have reached a position where further legal interest is inevitable.

Do read the article – and I address this in particular to legal readers of the blog, because Tom’s take on how law affects the development of and conversations within a fast-moving industry is worthy of your consideration.

Abstract:

In the contemporary games sector, independent developers feel there is an inadequate level of protection for their intellectual property, particularly with regards to game clones. There is also a sense that neither players nor policy-makers completely understand the specificities of how IP may be creatively, if not legally infringed. As a result, there has increasingly been a shift towards the construction of a culture of self-regulation for indie developers, attempting to publicly shame cloners via social media, directly impacting infringers’ reputation and sales and bypassing formal regulation.This article uses interviews and workshop discussions with developers to examine the manner in which this informal culture of regulation has been perpetuated in relation to current videogame copyright legislation, and suggests how the interrelation between producers and policy-makers may help to inform the direction of future policy decisions. Examining the way appropriate practice is informally managed in independent gaming, the article considers the soundness of policy in the contemporary videogames industry.

Games and gambling

Two pieces of mine have recently appeared in online law journals. They are available without charge or login from the journals concerned; both journals are open access journals. You can also download the articles from SSRN.

The first article emerges out of the CREATe project on games, transmedia and the law. Along with my UEA friends Dr. Keith M. Johnston and Dr. Tom Phillips, I have been thinking about legal and business issues in and around the games industry, with a particular interest in new and emerging business models. This particular piece, “Multiplayer Games: Tax, Copyright, Consumers and the Video Game Industries” (European Journal of Law and Technology | SSRN) is a discussion of the impact of legal measures in each of the three cited fields.

The successes of the games industry requires an analysis of the way in which the state is influencing, or attempting to influence, the development of the sector. Drawing from a research project on games, transmedia and the law, including a roundtable with developers and others from the industry, a critical perspective is provided on the impact of three types of law (tax, consumer and intellectual property) on the UK industry. The negotiation and eventual approval of a tax credit for video game development expenditure is reviewed. This is an example of the games industry lobbying for and welcoming the creation of a specific (but film-influenced) legal status for the “video game” – but the passage of the scheme raises troubling questions about the cultural status of games. A significant commercial issue, that of consumer protection, is then discussed. Consumer legislation may prove to constrain certain developments in relation to games; it is argued that there is a special impact on new platforms, because of the (deserved) official attention now being paid to in-app purchases. In relation to intellectual property, the alignment (or misalignment) of copyright law with concepts of value in the sector is considered, with particular reference to “cloning”. In conclusion, the particular impact of the three fields on new platforms, and the different degrees to which legislation is contributing to the development of the games sector, is considered. It is argued that the emerging business model of F2P non-console games is not handled as well as it should be, particularly as compared with other business models in the sector.

The second, shorter piece is an update for the law and technology journal SCRIPTed on recent developments in online gambling law. I discuss two particular developments: a significant retreat from the ‘deregulatory’ Gambling Act in Great Britain (amended to provide for greater control over foreign providers advertising or doing business in the UK), and a further step in the EU’s attempt to get to grips with the field – a Recommendation from the European Commission. The piece is “When The Dealin’s Done? Recent Developments in Online Gambling Law and Policy” (SCRIPTed | SSRN) and, to my great delight, was submitted on Kenny Rogers’ 68th birthday.

 

(Free) access to articles on apps and on intermediaries

This month, the final versions of two of my articles have been published by Oxford University Press. OUP’s approach to copyright allows pre-prints to be posted on sites like SSRN, but for final versions, the author is supplied with a free-access URL instead. This link can be posted on personal or institutional sites (like this one).

(1) Daithí Mac Síthigh, ‘App law within: rights and regulation in the smartphone age‘ (2013) 21 International Journal of Law and Information Technology 154-186.

An earlier version appeared as a working paper, posted here. The final version includes the changes proposed by the editor and by peer reviewers (including some reorganisation and clarification of the core questions), as well as a small number of subsequent developments.

(2) Daithí Mac Síthigh, ‘The fragmentation of intermediary liability in the UK‘ (2013) 8 Journal of Intellectual Property Law & Practice 521-531.

This is now online for the first time. It’s a shorter paper (just at the upper limit of 7500 words for this journal, although they print in columns so it’s not too long when printed!), which started life as a talk and a briefing paper for events with legal practitioners. Subsequently, I wrote it up in more detail, and also added new material on the Defamation Bill (now Act) as it developed. Here’s the abstract:

It is argued that the system for intermediary liability (for mere conduits, hosts and search engines) is splitting into a number of different systems.

In the case of copyright, intermediaries (particular mere conduits) have new duties. However, regarding defamation (and to a lesser extent privacy), new schemes are reducing the liability risk of hosts – under certain circumstances.

The result is that the single system of the Electronic Commerce Directive is being replaced by a mixture of EU and national legislation, revived common law doctrines, and specific provisions for particular areas of law.

Recommended reading, 14-20 February 2013

News, blog posts, etc

Lisa Campbell, ‘Is Netflix just a novelty?‘ (Broadcast 14 February 2013). Given my interest in VOD (primarily how it is regulated but to get there requires understanding the market), the last few weeks have provided much to think about.  I can’t decide whether to be impressed at the Netflix coup of launching House of Cards as an all-at-once release or cynical about how its press releases were parroted by some in the press.  I think both.  Anyway, the coverage in Broadcast does look at it from a number of different angles. (Thought I will return to although I’ve probably said it before: if the standard for being covered by EU audiovisual media law includes being ‘TV-like’ subject to interpretation in a ‘dynamic’ way, does this sort of move make a difference?)

Jeremy Phillips, ‘Save our hyperlinks! Paws for reflection as Profs Opine‘ (IPKat 15 February 2013).  Commentary on the intervention of academic group the European Copyright Society (does it have a website? cannot find) in a very important case on hyperlinks, Svensson.  The case is before the Court of Justice of the EU shortly and takes up a question much loved by IT textbooks more or less since they started to exist: is a link one of the acts restricted under copyright law?  If so, then the consent of the author of the target page may be necessary – but the consequences are significant.

Claire Porter, ‘Google ‘flaw’ puts users’ details on display‘ (News.com.au 16 February 2013). Another tricky story about apps and privacy; this one is about the Google Play store.  Worth noting that there is a bit of discussion about the way the story has been reported (and amended) – see e.g. here.  Original link via Slashdot.

David Streitfield, ‘Tech Industry Sets Its Sights on Gambling‘ (New York Times 18 February 2013). Discusses the implications of any change in the law on online gambling in the US for social networks and for the casual gaming sector.  Also mentions the interesting issue of gambling and Diablo.

William Turvill, ‘News agencies’ fear over impact of copyright law proposals‘ (Press Gazette 20 February 2013). It looks like the lobbying against the proposed implementation of the Hargreaves Review is well underway now.  I think there is a fair point to be made about the constitutional problems (the typical, pernicious turn to secondary legislation in place of proper parliamentary scrutiny), although the substantive arguments tend to the alarmist.  For example, I can see why the photographer groups who were critical of orphan works proposals in the past are sceptical about extended collective licensing.  Less obvious to me is why that opposition extends to the long-overdue proposals on parody.  Perhaps there’s just general opposition.  We’ll see.  Given that some of these recommendations are still overdue from Gowers 2006, it would be a shame to get stuck at this stage..

Academic publications

Speaking of parody: Kris Erickson, ‘Evaluating the Impact of Parody on the Exploitation of Copyright Works: An Empirical Study of Music Video Content on YouTube‘ (Bournemouth University for IPO, 2013).  Fascinating attempt to measure the consequences of protecting (or not protecting) parody.  Via Rebecca Tushnet.

And more on copyright: Lee Edwards, Bethany Klein, David Lee, Giles Moss, and Fiona Philip, ‘Framing the consumer: Copyright regulation and the public’ (2013) 19 Convergence 9-24 (£). Multi-disciplinary perspective on attitudes to copyright, with a particular interest in downloading (other articles in the same issue also explore the theme of attitudes and IP)