Lex Ferenda

During 2011/12, I’ll be working (among other things) on a project on media content regulation in the UK, with a particular focus on complaints about broadcasting.  It’s funded by the British Academy Small Grants scheme, and I’ll share further information once it is up and running.  The project includes analysis of decisions (with the help of a research assistant), interviews, and historical/archive work.  Here’s the abstract:

Despite the changes brought about in relation to technological convergence, the proliferation of television channels and the availability of content on the Internet, content regulation remains an important issue for much of the UK media. The point of entry for legal scholarship in this area tends to be the overarching statutory controls (e.g. the passing of the Communications Act 2003) or human rights law (the consequences of licensing or prior scrutiny, the impact of controversial decisions on freedom of expression). This study is an attempt to consider, with a particular view to the apparent changes in the media industries and in audience behaviour, the real impact of content regulation in situations where it is more routine (and less dramatic) than the occasional but well-scrutinised times when Parliament assesses principles or a court reviews a particular determination. At a time when diverse laws are under review, this work would contribute, through analysis of decisions in particular, to a debate of wider public interest, informed by scholarship in media/cultural studies.

media@uea is an initiative which brings together the schools of Economics, Film & Television Studies, International Development, Law, Political, Social & International Studies and others from across the University of East Anglia. We are pleased to invite you to the first media@uea symposium, taking place in Norwich on 24 June 2011. We hope to bring together experts from across UEA schools who are engaged in media-related research with scholars from other institutions and a range of external “stakeholders”, including speakers from the media industries, activist and pressure groups and political parties.

Lots of exciting speakers and topics – see the programme and registration information here. I’m co-organising this with my colleagues Sanna Inthorn and Rayna Denison.

UEA Law School has recently advertised two full-time indefinite posts in the areas of media, IT or IP law. See further details and download the Further Particulars Brochure here.

The posts (at Lecturer or Senior Lecturer level) are available from April 2011 or afterwards, with applications due by 19th November and interviews due to take place on 9th December. (There are also two positions available in commercial law, but I’m not going to discuss them in this post).

As you might imagine, this advertisement is of particular interest to me, as I work across all of these areas. The two posts stem from a number of exciting developments, and I have high hopes that we will attract high quality applicants. In terms of research, UEA is developing an interdisciplinary centre for the study of media, media@uea, and the Law School has a new research grouping for media and IP (and related) law within the School itself, which I will convene. There’s also a strong link between this work and that of the ESRC Centre for Competition Policy at UEA. In the world of teaching, the LLM in Media Law, Policy and Practice is now in its third year (highest numbers yet), and the longer-running LLM in IT & IP Law will return in September 2011 after a brief absence. Those appointed to these posts will be involved in all of this and more. As the ad says, preference will be given for one post to someone with knowledge of copyright law.

Both posts are what UEA calls ATR (academic, teaching and research) positions, which means that there is an expectation of high-quality research including a significant submission for the next Research Excellence Framework (REF) – with around 40 of time spent on research and the balance on teaching and other activities.  Some of the topics that we’re working on at the moment include (taken from the brochure) the development of English defamation and privacy law, enforcement of intellectual property law in European and international law, passing off, the relationship between public service broadcasting and competition policy, the impact of criminal law on artistic expression, and the regulation of new media such as computer games and social networking sites.  Very diverse, with great potential for interdisciplinary work.  You can see why I’m enjoying this so much!

We’re already teaching a lot of law in these areas, but plan to add even more options.  At undergrad level, we have three modules: intellectual property law, Internet law, and media/entertainment/sports law.  The undergraduate curriculum is being relaunched (see the dedicated LLB Law site here) which will mean more choices for students and the incorporation of skills training.  At postgrad level, current modules include Media Markets & Regulation, Globalisation of Intellectual Property Law, Commercial Aspects of Media Law and Technology Transfer.

I’m very happy to share my experiences about working at UEA and living in Norwich, if you think that you might be interested in joining us. Just email me (details under ‘contacts’, above). You can also contact the Head of School, Prof. Alastair Mullis, to discuss these vacancies and the commercial law posts too.

Unlike friends in the United States, who are into the second week of teaching already, students at UEA Law School don’t arrive until September 27th.  In the same way that your local football team will square up to some unusual opponents to get some work in before the real season gets going (like a less organised version of spring training), I’ve recently been talking about Internet law to some very different audiences.  The first was part of a Year 10 Summer School at UEA.  (Year 10 = age 14/15 in England, i.e. before GCSE exams).  The summer school students had a very wide-ranging programme, including everything from computer games programming to persuasive communication (via how to study science fiction and a Dragons Den day), and the Law School contributed two sessions.  One, with new Head of School Prof. Alastair Mullis, was on the popular topic of ‘celebrities and the law’.  The other was with me, under the title ‘Law Books and Facebooks’.  I found it very interesting, for all sorts of reasons, not least the debate that broke out over whether users would pay for Facebook (few would) and whether that would make a difference to their expectations in terms of rights and obligations (it would).  Of course, as I’m certainly realising after a few events like this, you can now take for granted with a group of that age that every single person will have a Facebook account, and many will have stories to tell regarding embarrassing photographs, accidental exposure of information to the wrong people, or even more serious issues.  The BBC3 Idiots Of Ants clip got another airing, too – it does seem to capture things very well.

The second warmup was even in a warm location, as part of the Intensive Programme on Transnational Law at the University of Deusto.  Here, I did mention social networking towards the end of my talk, although the overall theme was the development and direction of international Internet law.  You can see the slides here, although (as is often the case with my presentations), it’s not particularly informative without the accompanying explanations.  I tend to use slides (Keynote, not PowerPoint!) as a backdrop or for emphasis rather than a record or substitute.  But you may at least get a flavour of what I spent two hours talking about from the link.  The audience on this occasion was a bright group of students from a range of European and US universities – mostly law students, some undergraduate and some postgraduate. About two-thirds of them had been online before the year 2000 – compare this with the Year 10s whose entire online experience comes after that date.  Also, I was quite interested in their reactions to the place of Internet law within the study of international law (public and private).  I think there is scope for more recognition of the links (both ways), particular as the story of Internet law and the UN institutions remains a fascinating study in political and legal machinations.

In the coming semester, I will be teaching undergraduate and postgraduate modules on Internet law (some information on the syllabi will appear on this blog, fingers crossed), and also contributing to undergraduate media law, constitutional law, and one of my favourite things (that looks tricky on paper but works well in practice), the joint postgraduate module, ‘Media and Society‘.

So.  As I said, I only managed to make it to the second day of the fifth edition of Gikii, but it was a very full day, and shows the strength of the concept (there is definitely an emerging Gikii aesthetic!) and the wide range of contributors.  I should say that my immediate impressions and various links are on my Twitter feed, and the tag gikii has lots of other views.  This post has some remarks on my own session, some shorter remarks on the session I chaired, and some even shorter remarks on the final session of the day.  Don’t forget that you can download most of the presentations from both days at this link.

Having arrived from Dublin the night before as part of a triangular journey (Stansted-Dublin, Dublin-Edinburgh, Edinburgh-Stansted), I was first up on Tuesday morning with my own presentation.  This time around, my topic was What We Talk About When We Talk About Google (or WWTAWWTAG as it is in my notes).  The idea for this presentation came from earlier (and as yet, incomplete) work on the Google Books case, and how it seemed to come at a time when Google’s treatment by politicians, NGOs and academics was in a state of flux.  Google is also involved in some of the most controversial media and technology policy issues on the table right now, everything from net neutrality to privacy.  So it seemed interesting to dig a little deeper. My presentation (which you can download here as PDF) was therefore an attempt to explore the question in the title in a number of different ways.  For example, I looked at the ways in which both courts and parliamentarians in the UK refer to Google – and compared that with a sample of news coverage, finding not just some differences (with the parliamentary discussion still focusing on Google as a general resource for search) but also some interesting internal differences within the media (in this sample, the Daily Mail / Mail on Sunday got very upset about Google Street View).  I also illustrated the different faces of Google through various parodies/cartoons produced by others, and talked about the various friends and allies that are found in Google’s public policy activities, and the result in the Viacom case.  I do hope to do some more detailed work on this, as it was more interesting (to me, at least) than I had thought.  Curiously, it also drew quite a lot of good laughs, with Ray Corrigan giving it a joint comedy award.  This is not my usual territory.  I don’t think my students would write ‘stand-up comedian’ on their feedback forms.

Luckily, the following presenter, Trevor Callaghan, had genuine claim to the comedy tag, with a discussion of Google and social networking.  It was a really through and unquestionably unprintable exploration of the topic, made more lively by the use of Prezi and diversions into broader issues of data, identity and privacy.  It’s really interesting how he was able to get a sense of what Facebook’s business and cultural models are, and how they differ from other players often grouped alongside them.  The final presentation in that morning session was another Gikii serial offender, Andrea Matwyshyn.  Her presentation looked at issues of authorised access, with a particular focus on the US Computer Fraud and Abuse Act (CFAA) and similar legislation.  Her key arguments were the divisions between criminal and civil issues (in particular, the role of contracts and terms of service), and she mentioned a number of key US decisions (such as the Lori Drew case and Register.com v Verio) and the problems stemming from then, including a pretty obvious circuit split (e.g. the difference between IAC v Citrin and LVRC v Brekka).  She questioned the purpose of the CFAA and other legislation and whether it was meeting its aims.

The second session had yours truly in the chair, and it included a range of papers on the broad theme of intellectual property:

• Steven Hetcher, “Conceptual Art, Found Art, Ephemeral Art, and Non-Art: Challenges to Copyright’s Relevance“.  Steven’s talk (from a US point of view) considered the ‘discrimination’ against forms of contemporary art that, being ‘unfixed’, are not within the common concept of copyright law as based on fixation.  In some cases, the work is the process, with no fixed object … although if unfixed art is to be protected, does this raise questions of artistic merit as an alternative mechanism for delimiting the reach of copyright?  With a wide range of slides (including a Damien Hirst shark sighting), there was also time to talk about Christopher Lowry’s work as discussed in Satava v Lowry, a 2003 case.
• Gaia Bernstein, ”Disseminating Technologies“.  This paper was an attempt to go beyond the rhetoric of ‘IP wars’ and to discuss the acceptance and dissemination of new technologies.  It builds on the author’s recently-publisehd work on innovation (e.g. here).  She traced the differences between approaches to technology in the cases of copyright and patent, and the interaction of both with competition.  She put forward an argument that the user’s role was not given the treatment it deserves, and subsequently pointed to a number of situations of market failures where (due to network effects or the importance of time) specific intervention was necessary.  Really interesting stuff, and bonus points for talking about Minitel.
• Christopher Lever, ”Netizen Kane: The Death of Journalism, Artificial Intelligence & Fair Use/Dealing“. The third paper used some very creative metaphors and images that were both botanical and big-screen (Citizen Kane), with an introductory discussion of the future of newspapers and journalism and the relevance of fair use and fair dealing giving way to a critique of the failings of DRM and a thorough analysis of the work of Ozlem Uzuner on digital fingerprinting and unique expression.
• Chamu Kappuswamy, “Dancing on thin ice – Discussions on traditional cultural expression (TCE) at WIPO”.  The final presentation in a very busy session.  Her presentation provoked a lively online and offline discussion on what constitutes TCE in a British or Scottish context, but also offered some valuable points on differences (even where in apparent agreement) between the approaches of UNESCO and WIPO and between traditional knowledge (often patent-related) and cultural expression (often copyright-related), and the links between international legal efforts regarding TCE, folklore, and intangible heritage.

The afternoon session included an even wider range of presentations. Simon Bradshaw & Hugh Hancock talked about (and created live before our very eyes) the prospect of interesting legal issues pertaining to machinima, suggesting that the ease with which this type of audiovisual work can be created will continue to be a fertile one for legal action and academic analysis (not least the prospect of issues around new provisions in the Crime & Policing Act 2009).  Ren Reynolds (with Melissa de Zwart, who wasn’t able to join us in person) talked about online games, statutory regulation of such in Korea, analogies (and case law) from physical sports like rugby, and the relationship between the rules of the game and other laws and rules, and the contract/license distinction.  The last presentations zoomed out and looked at  developments across disciplines: Abbe Brown (presentation here) reviewed the various issues, forces and actors in Internet governance and international cooperation (highlighting different approaches and parallel debates), while Michael Dizon (presentation here) presented a post-Lessig/(Andrew)Murray analysis of ‘the network is the law’.

Also, we had cake.  And that’s it about Gikii for this year.  Don’t forget to download the presentations…