A new research handbook on creative industries and IP
My most recent book review on Abbe EL Brown’s and Charlotte Waelde’s edited volume titled “Research Handbook on Intellectual Property and Creative Industries”(Edward Elgar, 2018, ISBN 978–1-78643–116-5, Hardcover, 401pp.) has been published in Journal of Intellectual Property Law and Practice’s website. Read it here, too.
Intellectual property (IP) law, especially copyright law, has historically developed both as a means and as an end of cultural development. Book publishers, writers, and other types of creators have benefitted significantly from the economic—and, in many jurisdictions, the moral—rights granted by the legislation. These norms have aimed, with varying intensity, to both provide a shield for creators against the unauthorized appropriation of their works and to incentivize authors and other members of the society to innovate and create new works. The necessity to analyze IP law from a cultural perspective is therefore self-evident. Indeed, the importance of this research grows rapidly, due to the massive suppression of moral and pure cultural interests of creators (and groups of people) by the economic interests of aggregators and disseminators of cultural goods. It is equally understandable that the reviewed book uses the widely accepted expression, cultural industries (CI) in its title. Culture has become a form of industry, rather than just a collection of social values. Culture has become a battlefield for legal, economic, social, political and many other interests these days. As Professor Philip Schlesinger points out in his chapter, ‘[Article 151 of the Treaty on European Union] offers considerable scope for culture to be used instrumentally for political purposes’.1
This is the main reason why Professors Abbe EL Brown’s and Charlotte Waelde’s research handbook on the interplay of the CI and IP law (with a special focus on copyright law) deserves attention. The editors collected a great variety of articles focusing on CI and IP from various perspectives, including law, economy, history, philosophy, technology, media, and several further aspects of social sciences. The book includes six numbered parts, and 29 articles are written by 35 authors from various jurisdictions and with significantly different personal backgrounds. Authors range from academia to practising lawyers and Members of the European Parliament, and they represent approximately a dozen of different jurisdictions (ranging from African countries to Japan, yet with a majority of contributors from the UK). The articles show a wide variety in terms of length (from slightly more than 2 up to 24), but they ultimately form a robust body of clearly interconnected and comparative readings.
The book’s structure is logical. It starts with the foreword by Professor Ian Hargreaves, and an introduction by the editors. Then it continues with parts on the fundamental/introductory discussions of CI and IP (Parts I and II) and on the analysis of substantive and timely questions (Parts III–V). Finally, Part VI is dedicated to articles that aimed to foresee the future prospects in this field.
Turning to the substance of the book, I shall refer to Professor Hargreaves’ thoughts first, who, as a correct starting point, recalls that CI and IP are interdependent, and that they equally rely on the digital environment. Next, Professors Brown and Waelde summarize the goals of the handbook and the history of setting its scope. They also provide a first-hand review of their own volume, by introducing all parts and each paper shortly. Let’s review these parts one by one here, too.
Part I is aimed at setting the scene, and introduces the fundamental legal and economic questions related to copyright and industrial property law with a special focus on CI. The papers included in this part evidence how deeply the protection of culturally important creations is embedded within modern society’s legal and political systems, including audio-visual policies, international agreements and the European Union (EU) Digital Single Market Strategy. The suppression of pure cultural values by pure economic interests—which I highlighted above—is perfectly evidenced by the example used by Professor Philip Schlesinger in his paper on the difficulties surrounding the inclusion of rules on cultural diversity in the Transatlantic Trade and Investment Partnership Agreement (TTIP) by the negotiating parties.2
Part II focuses on the policy considerations of the interplay of CI and IP. The short papers are dedicated to both widely publicized countries/regions (UK and the EU), as well as less analyzed countries and regions (namely, Africa, India and Japan).
Turning to the substantive questions related to CI and IP, Part III provides an insight into the ‘law-in-action’, and focuses on two main sub-questions: sharing and enforcement. Regarding the former, Andres Guadamuz introduces the various forms of open approaches to sharing informatively, and Nagla Rizk provides an insight into the current functioning of sharing in Egypt. Jane Cornwell’s collection of the most important research papers and surveys related to the enforcement of copyrights over the internet highlights perfectly why a one-size-fits-all approach is hard to find in this respect, and that ‘[b]ecause of the variance in enforcement systems across jurisdictions (…), finding in one jurisdiction cannot necessarily be carried over into a different jurisdiction’.3 Further, Cornwell excitingly cites Christopher Anthony Cotropia and James Gibson’s article4 that evidenced that although ‘a high volume of copyright litigation has originated with a concentrated group of high-volume creative industry enforcers’,5 and that ‘major media companies were active in specific targeted fields (…), smaller firms were the most common litigants across all other US copyright cases which [Cotropia and Gibson] reviewed’.6 Finally, Abbe Brown’s paper discusses the wide variety of available remedies to tackle online infringements, ranging from civil remedies to competition law and human rights based approaches.
Part IV focuses on the legal, social and technological changes to CI. More precisely, the articles included in this part look at socially important expressions from a cultural perspective, especially folklore and artistic expressions. As such, we can read exciting discussions of visual arts, the traditional Romanian blouse (that reminds the present Hungarian reviewer of his own national folk/heritage crafts), dance, as well as broader papers on the protection of expressions of folklore, artificial intelligence and copyright in museums.
Part V, titled as ‘Cross-sector issues’, provides a fascinating combination of research papers that stretch outside the general intersection of CI and IP. These papers take a look at philosophical, sociological, economic perspectives, as well as corporate social responsibility. Gregory Mandel’s piece on the judgment of IP, creativity and reward by laymen and professionals deserves special attention. Mandel convincingly evidences that social norms and the ‘reality’ are different from the legal norms. Put differently, whatever IP attorneys think on the reward/incentive theory, society looks at the importance and the content of IP protection differently (and certainly less seriously).
Finally, Part VI focuses on the key outcomes of the handbook, as well as the future perspectives. For example, Nicola Searle states that the ‘challenges do not mean that the economic analysis of IP is a sinking ship’,7 and calls for the continuing examination of economic aspects of IP rights, as well as for the incorporation of new methodologies into the applied methods. Irene Calboli glances out to an underexplored aspect (as Calboli calls it) of CI and IP law: diversity.8 In fact, Calboli’s paper proves the existence of a multi‐layered treatment of females and any kind of minorities in the film, music or sports—in short, the entertainment—industry. The surface layer has a liberal nature (especially in Hollywood) or emphasizes the importance of community and the equality of all members of it (as in case of major sports). The deep layer is, however, clearly chauvinist, discriminatory or, to use Laura Mulvey’s expression, characterized by the ‘male gaze’.9 The masculine point of view is clearly evidenced by the chauvinist lyrics of hip‐hop music, the racist use of ‘the slants’ expression by a rock band,10 the extremely low number of female directors and leading roles and other contributors in film productions, or the mere existence of lingerie football. To sum up, I fully agree with Calboli’s conclusion that ‘IP could and, in the view of this author, should, have a more prominent role in facilitating a more balanced approach to the protection of diversity’,11 or, in general, to the protection of social justice.
1 Abbe Brown and Charlotte Waelde (eds), Research Handbook on Intellectual Property and Creative Industries (Edward Elgar 2018) 15.
2 ibid 20–22.
3 ibid 140.
4 ‘Copyright’s Topography: An Empirical Study of Copyright Litigation’ (2014) 92(7) Texas Law Review 1981–2027.
5 Brown and Waelde (n 1) 139.
7 ibid 357.
8 Nevertheless, readers might consult selected works of Ann Bartow, John Tehranian and Kevin J Greene, who have already focused on diversity in copyright law.
9 See Laura Mulvey, ‘Visual Pleasure and Narrative Cinema’ in Leo Braudy and Marshall Cohen (eds), Film Theory and Criticism: Introductory Readings (Oxford University Press 1999) 833–44.
10 In Re Tam, 808 F 3d 1321 (Fed Cir 2015).
11 Brown and Waelde (n 1) 364.