25 March 2021

Our Latest Copyright News Picks From Around the Globe

By Amalyah Keshet, Senior Consultant

“In the face of a pandemic, copyright law may seem a frivolous concern; but its importance lies in the ever-expanding role that it plays in either enabling or constraining the kinds of communicative activities that are critical to a flourishing life.”

An article published last October by the Washington College of Law at American University in Washington, DC, takes an extremely interesting look into the role copyright has been playing on the COVID-19 pandemic (quotation above is from the abstract). The authors, Carys J. Craig and Bob Tarantino, look at our present “permission first” copyright systems —the ones we’ve inherited and deal with every day, both professionally and in our personal lives. The focus is on Canadian copyright law, but the perspective is easily applicable to, for example, US or UK copyright law and pandemic year experience. Thought provoking and obviously timely, the article is framed in the image of Boccaccio’s Decameron, written during a previous (14th century) pandemic. In that literary masterpiece, ten nobles flee pestilential Florence for a country manor, “where they regale one another with tales for ten nights.”  A pandemic “bubble” or “capsule” in lockdown, inventing their equivalent of online entertainment, one might say.

More from the abstract:

“In this article, we reflect on how the cultural and educative practices that have burgeoned under quarantine conditions shed new light on a longstanding problem: the need to recalibrate the copyright system to better serve its purposes in the face of changing social and technological circumstances. We begin by discussing how copyright restrictions have manifested in a variety of contexts driven by the coronavirus lockdown, focusing first on creative engagement and then on learning, foregrounding the damage done by encoding a permission-first approach into governance structures and digital platforms. These stories unsettle the common copyright narrative—the one that tells us that copyright encourages learning and the creation and dissemination of works—laying bare it’s disconnect from the current realities of our digital dependency. Turning to consider the justifications for copyright control, we underscore the critical role of user rights and substantive technological neutrality in crafting a flexible and fair copyright system for the future. The article concludes with some lessons that might be drawn from these tales of copyright in the time of COVID-19 to inform the development of new digital copyright norms for whatever “new normal” emerges.”

For those with a bit of an academic bent, this is well worth digging into.  The article is available for download by following this link.

As a follow-up to the above study, or as a much shorter substitute, one can have a look at a good opinion piece by Christopher Buccafusco, the Director of the Intellectual Property & Information Law Program at Benjamin N. Cardozo School of Law at Yeshiva University, New York.  Instead of Boccaccio, this piece makes use of a very 21st century model of social creativity: “The sea shanty craze on TikTok shows how exciting it is when a wide range of creators can collaborate to build something entirely new.”  But, the author points out, “most copyright laws weren’t designed with social platforms and virality in mind.”  Again, a good read, and a good look into why copyright laws need to be adapted to how culture works today. [i]

These are two good opportunities to explore the foundational issues for copyright updating and to encourage discussion and fresh thinking as we go forward into the post-pandemic creative economy.

Last month, the Artists Resale Right turned 15. Introduced into the UK in 2006, the ARR is an intellectual property right also known as doit de suite, which entitles artists to a percentage of the sale price whenever their work is resold on the secondary market.  ARR is a royalty generated on the sale price of original works of art that are sold at a profit, and it applies to all artists who are EEA citizens. Following Brexit, the UK Government published legislation which ensures the continuation of ARR for UK artists and artists’ estates. It applies to sales of original paintings, collages, sculptures, drawings, tapestries, ceramics, lithographs, engravings, prints, glassware and photographs, and has the same term of protection as copyright in the original (the artist’s lifetime and 70 years following).  Worth tucking into one’s knowledge of art-related intellectual property.  More information available by clicking here.

While some people like to follow tennis, and some follow women’s rugby, others follow Jeff Koons’s copyright lawsuits. Here’s the latest one he’s lost, on appeal.  This time the Centre Pompidou lost along with him. Click here to view the article.

While on the subject of sports, another favourite one is calculating the term of copyright protection – or the inverse, the entrance of a protected work into the public domain.  The sport is demonically complicated in the United States, due to changes in copyright legislation over the years and publication requirements. Impenetrable charts sprinkled with footnotes exist online, but my favourite is the excellent one created by Peter Hirtle at Cornell University, USA.[ii]

Fortunately, in Europe (and the UK) it is a significantly easier and clearer task; the latest resource I’ve run across comes via Europeana. There is a tiny complication:  it is in Dutch. However, that shouldn’t stop the intrepid copyright manager of an arts institution.  This is “…a tool developed by Meemoo, the Flemish Institute for Archives, which helps cultural heritage institutions to determine whether their collection items could be in the public domain. …its innovative approach can act as inspiration and guidance for all looking to accurately identify copyright in their collections.”  Happy hunting.[iii]

[i] https://www.businessinsider.com/viral-sea-shanties-tiktok-reveal-about-our-broken-copyright-system-2021-1

[ii] https://copyright.cornell.edu/publicdomain

[iii] https://pro.europeana.eu/post/public-domain-tool-automating-the-calculation-of-works-in-the-public-domain

© Naomi Korn Associates, 2021. Some Rights Reserved. The text is licensed for use under a Creative Commons Attribution Share Alike Licence (CC BY SA)

Disclaimer: The contents of this blog post are based on the assessment of Naomi Korn Associates Ltd at the time in which the resource was created (March 2021). The contents should not be considered legal advice. If such legal advice is required, the opinion of a suitably qualified legal professional should be sought.