For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Monday, 16 June 2014

Making the Abstract concrete: some readers' responses -- and a lovely surprise!

An academic Kat*
In "Not just an academic question -- but an Abstract one", this Kat kick-started what has turned out to be quite a lively discussion about the function of abstracts for journal articles -- particularly within the context of intellectual property.  This discussion has spilled over into the jiplp weblog and its associated LinkedIn Group, where many of the readers and members respectively are either people who write abstracts or those who use them.  At the end of his post, which quoted a particularly difficult abstract in full, this Kat wrote:
"So here's the challenge: how clearly and succinctly can readers of this weblog summarise the abstract above, so that it can be understood and appreciated by an informed reader on a single reading, without the aid of a dictionary? ... There is no prize other than the satisfaction of having made what looks like an interesting argument easier to understand".
Several readers rose to the challenge. They include, but are not limited to the following:
"Creators, rightholders, intermediaries, users, copyright law and state or quasi state institutions form a complex feedback system in which technological change is a factor. Previously copyright adapted to changes in the system stimulated by technological developments. But this time copyright’s inadequately selective responses to the internet and digital technologies have broken the system. Copyright law itself has diverged from social reality and lost much of its credibility. Copyright needs a radical fix that embraces the digital world and pays as much attention to users and creators as to the economic and political interests which have so far been mostly favoured": Graham Smith (Bird & Bird LLP partner and Cyberleagle blogger).
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"This article examines the evolution of copyright law alongside the arrival of the digital age. The authors argue that copyright law has failed to support the creative industries in a digital world where it is socially acceptable to use and re-use content freely, instead favouring the rights holders and intermediaries. Only by addressing this conflict and rebalancing copyright law will society as a whole benefit from what the internet and digital technology has to offer": Martin Noble (Legal Director, Shakespeares).
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"Like most other branches of the law, copyright law started out simple to understand and relevant to both the stakeholders and the technology which was available at the time. As technologies and the types of work which were thought to need copyright protection changed and evolved, so the law also evolved and expanded, and took on a multinational framework. However, from the latter part of the twentieth century, the twin stimuli of more co-ordinated political lobbying by large companies with lucrative intellectual property portfolios, and the advent and rapid development of the internet, have resulted in a perceived mismatch between the law's ability to adequately safeguard the interests of all copyright owners and the digital environment in which a very large part of copyright works is both hosted and consumed. This article seeks to address the current issues by examining the development of copyright law over time, and contrasting this examination with the world in which it had and will have to operate. The article concludes that copyright law now requires a radical overhaul if it is to serve any practical purpose in the digital age": Andy Johnstone.
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"The article explores the issues of how technology has hindered, if not completely defeated, the application of copyright law. The authors believe that the knee-jerk reaction of regulators to improvise a solution and resolve this issue with methods that neither benefit the consumers (of the copyright content) nor the creators, is due to the pressures faced by the regulators from all sides and the fact that technology has advanced too quickly for copyright law to catch up. The current situation is such that copyright law claims that it regulates the digital age, when really, it is avoiding all the intricacies that comprise the digital age, including economic and social norms. To resolve this, the authors believe that copyright law should be taken apart to examine what exactly the intricacies of the digital age are, then piecing it back together to ensure applicability": Grace Teoh, who modestly adds a disclaimer: "I think this is what I understood from the abstract (but I may have missed out one or two things)". 
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"An autopoietic system is one that can be reflexive - it can absorb external feedback into its method of re-production (for example, laws unintended to deal with digital media can be adapted to encompass and apply to legal cases involving digital media through judicial interpretation and extrapolation of the key cases, meanings and intentions of laws that already exist). This isn't the best example in the world but it alludes to the idea that the legal system can change itself in response to external feedback, which is at the heart of the idea of autopoietic systems.

The book examines the relationships between different systems (e.g. legal, political, creative, political) and analyses how the copyright regime has evolved, given that it has its basis in multiple of these systems, e.g. copyright gives legal protection of creative output and gives economic reward for that creative output.

The digital environment has changed the application and reality of copyright. New technology has sparked new needs and issues within these systems, as well as copyright, changing the way that creative works are created, stored, disseminated and the way that access can be provided to them. Because of the way this new technology works, it impacts on the regulative power of some of those systems and some systems have failed to adapt (I would personally argue that something about temporality should be included here - one of the major ways that technology and copyright law have changed is the speed with which things can be reproduced and disseminated but this isn't specifically one of the topics in the Abstract). "Reactionary" responses have meant that the frictions caused by the interference of digital technology in these systems (including copyright) have led to increasingly divergent attempts at solutions, many of them inadequate or contradictory, resulting in imbalances between rights holders, technology providers, lobby groups (or political groups more generally), and that economic interests have come into opposition with social norms which have previously advocated for free use and reuse of digital works.

The authors posit that, over the years, copyright law has distanced itself so much from the environment within which it operates/is to regulate that the outcomes and applicability of the copyright regime have lost credibility, leading to the loss of credibility and applicability of copyright to the digital environment. The authors go on to say that, for copyright law to successfully regulate creative output, there needs to be extensive reforms to copyright laws that take into account all of the social systems (as mentioned above) that exist in modern society, without favouring only the economic or political ones. They conclude that society might only benefit from the new opportunities that digital technologies offer if copyright law properly adapts to the specificities of the digital world.

Basically, copyright isn't keeping up with the digital environment, there are some stakeholders who have more power than others over/under the copyright system, and those more powerful stakeholders shouldn't be allowed to ride rough-shod over creatives who want to engage with digital technologies by using a regime that isn't able to self-regulate in response to these new circumstances in which copyright needs to operate": Keigh-Lee Paroz.
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"This article uses modern systems theory (the interdisciplinary study of how systems (of any type) work) to explore the pressures on copyright law in the internet age. It suggests that the tension between the interests of rightholders, users, technology providers and the legal system is inevitable in the light of technological developments and that radical reform is necessary, bringing from systems theory some suggestions for how the right balance between these interests may be reached": Alan Pratt (partner, DAC Beachcroft LLP). Adds Alan, "I think you are being unfair – the counter would be that the stress on copyright is so great that a step change/reform as the article seems to call for is necessary and therefore it would follow that the difference between the rightholders' (IP lawyers?) perspective and scholarship trying to explore new approaches would be marked. You could draw an analogy with the process family law went through after the war as the law was integrated with social care, economic, church/state and civil rights interests". 
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The last word from blog readers on the subject goes to Tony Ballard (partner, Harbottle & Lewis LLP), who does not so much rewrite the abstract as comment on it:
"Surely all the abstract is saying, once you strip out the academic hocus-pocus, is that copyright should not restrict access to and use and reuse of protected works in the digital domain. Maybe the authors should go on to suggest that universities should not restrict access to and use and reuse of their facilities. Judging from the abstract, it seems that the general public might make better use of them than some of the current users".
This Kat thinks that we've all got a better idea now of what this article is about, though he notes that, as might be expected, different attempts to summarise the abstract have weighted it differently, using a variety of metaphors and forms of expression in order to do so.  Thanks so much, both to those correspondents named here and to the rest of you, as well as to those folk who anonymously or otherwise posted their comments on the original blog post.  If the result of this exercise is that we are all more sensitised to the function of the abstract and the need to keep it accessible, it will have been worthwhile.


And now for the lovely surprise. Having composed this feature and being about to post it, this Kat spotted a late entry, posted as a pair of comments to the original blogpost -- from none other than the authors of the much-discussed abstract, Katarzyna Gracz & Primavera de Fillipi. They explain:
"We are both thrilled by the fact that our abstract triggered such a heated debate. We absolutely agree that both the abstract and the article should take into consideration the most probable readers of the Journal: “legal and computing professionals and legal scholars of the law related to IT”. Somehow we took it for granted that it is for the Journal itself to decide whether the profile of the article is coherent with the profile of its readers, but perhaps we forgot that an academic Journal will mostly focus on an academic readership.

We chose to publish an article devoted to Theory and Sociology of Law into the Journal of Law and Information Technology precisely because we wanted to confront our ideas with people from a different background, who might not necessarily be acquainted with these concepts.

We did spent a considerable amount of time trying to explain the dense theoretical and academic language of systems theory in a way that remains understandable to non-experts. Indeed, this caused a decent amount of internal struggles and debates between the two of us -- a “Luhmanniac” on the one side, and a pretty much down-to-earth copyright researcher on the other side.

Such a heated debate clearly proves that we have failed at the level of the abstract. This, however, also proves that Luhmann was right: our social reality has become so complicated that the communication between different systems that comprise society (e.g. academia v practising lawyers) is increasingly difficult to achieve.

Yet, as much as we believe this description of social reality to be true (and scary), we take it as a challenge to translate the abstract for the general public hoping that having read the abridged version of our abstract some of you will be willing to read the whole article and share their ideas on the substance, instead of merely criticising the wording of the abstract".
Katarzyna and Primavera then offer their own fresh abstract:
"The article uses systems theory to explain why copyright failed to adapt to the digital world. According to systems theory, modern society is made up of many differentiated communication systems (such as the systems of law, economics, politics, technology etc.) which serve different functions and operate according to different rationalities.

The article specifically looks at how technological advances have stimulated immune reactions into one of these systems: the copyright system, which (as a subsystem of the legal system) can be regarded, metaphorically, as a living organism thriving to survive in the changing environment.

Copyright law does not exist in a vacuum, but rather evolves in reaction to changes in its environment. Yet, it appears that, after a long evolution (in the darwinian sense of the term), the copyright regime is, today, at the border of extinction.

Indeed, a former flaw in the evolutionary response of copyright law has brought the law to become increasingly unstable, almost unviable in the digital world. Instead of reacting to all the stimuli it was exposed to, the copyright system eventually began to acknowledge some more than others. As a result of lobbying, it became an easy prey to parasites (such as creative industries) eager to reform the law in order to ensure their own survival in the new ecosystem, at the expense of other rationalities.

We claim, therefore, that in order for copyright to survive in this new environment, it needs to be reformed to account for the stimuli stemming from all relevant systems and subsystems, rather than favoring one over the others.

Application of the systems theory to the analysis of the current crisis of copyright law allows us to step out of the old and abused narratives of who will pay for this vs art for art's sake as it makes it clear that in many situations the same actor, representing particular interest group, may in fact be a part of many diverse functional systems with competing rationalities.

The article shows that such is in fact the case of authors who simultaneously belong to (at least) two different systems of communications: the economic (which is interested in putting limits to sharing through the mechanism of price) and creative (led by the pro sharing logic, which assumes that the value of information grows with sharing), that should both be acknowledged by the modern copyright law if it is here to stay in the digital environment".
They nobly conclude:
"Because we do believe in what we write, we can assure you that when writing this article we were led by the rationality of the scientific system that is interested in finding the truth, which can only be found through the mechanisms of sharing, constructive criticism and cooperation for the common good. So we invite you all to treat this abstract as a wiki version that might be changed by those who read the article in whole.

Let us all learn on the past experience with the use of the cooperation possibilities provided by the new technologies.
Best wishes from the Ivory Tower, with special thanks to those of you who believe so much in the power of academia to change the world that are afraid of "machinations afoot with academics"."
Thanks so much, Katarzyna and Primavera, for participating in our debate in the manner in which it has been conducted!

 Illustration: Professor Cat, by shininginthedarkness

3 comments:

Dr Michael Factor said...

The author's new abstract is 402 words.

A PCT application allows 150 words. I have cut the abstract down to 150 without losing anything substantive:

Systems Theory may explain why copyright fails to adapt to the digital world by positing that modern society comprises various systems serving different functions and operating according to different rationalities, including law, economics, politics and technology.

Comparing the copyright subsystem to an organism trying to survive environmental change, how technological advances stimulate reaction is considered. Contemporary copyright law acknowledges different stimuli unevenly, becoming increasingly unstable and obsolete. Via lobbying, it became prey to creative industries and others eager for legal reform to ensure their survival. For copyright to survive this new environment, it must respond to stimuli from all relevant subsystems.

Analyzing contemporary Copyright Law crisis using Systems Theory allows broader perspectives than merely 'who pays' versus 'art for art's sake', since often the same actor is a part of many diverse functional systems with competing rationalities. Authors have both economic and creative interests. Copyright Law survival requires acknowledging both.

Anonymous said...

Wow, an amazingly clear abstract in 150 words. However the task is probably made much easier by knowing the abstract is for IPKat readers. I think a lot of bad writing happens when the wrong audience is addressed.

One wonders whether legislators know and consider systems theory, or at least have a list of all the 'subsystems' that need to give stimuli.

Judyth said...

Here's my effort at an abstract, though it's a bit long:

The purpose of the copyright regime, a part of the legal system, is to regulate the social interactions involved in the production and dissemination of, and access to, creative works. This mechanism is now in a state of crisis thanks to the digital technologies which have reshaped the current environment.

The article discusses how copyright law has evolved over time, and analyses the complex relationships and interests involved: in particular, amongst the creative system (creation and publishing or works), the political system (the state and religion), the economic system (right holders and various commercial parties in the market for creative works) and the technological system (the Internet and the various technical services involved in production, distribution and access).

Historically, the introduction of new technologies into this field has been disruptive. From the early stages of copyright legislation in response to the printing press up to the present era of extremely rapid change, the laws have gradually adapted to new circumstances, largely under pressure from the interested parties, and maintained a degree of productive stability in the environment.

However, with the advent of Internet and digital technologies, copyright law has been failing to adapt to the changing world it was meant to regulate. Reacting primarily to economic and political pressure (i.e.,
lobbying), legislators have upset the balance of the creative ecosystem, favouring the larger commercial intermediaries over the creative artists and the public for their cultural creations.

As a result, legal access to and uses of creative works by the public has been increasingly restricted at the very time when digital technologies made wider access and use of the works possible for the general public. While a movement has advocated for greater freedom to use and reuse digital works as the technology permits, changes in copyright law have tended in the opposite direction, extending the period of copyright protection and implementing further restrictions and punishments for "personal use" activities now made more available to the general public thanks to mass-market electronic devices and the Internet.

In other words, copyright law has become disconnected from the social reality of our time. Whereas its original purpose was to balance the public good of making creative works available to everyone with the right of creators to be paid for their work, its present effect is to
restrict and penalize the public while affording little relief to the majority of creators who lack economic and political clout. Instead, it provides an environment in which economically powerful intermediaries (media corporations, industry lobbies, etc.) are the main beneficiaries.
As a result, the copyright regime has lost credibility with most
creators and most of the public, all of whom would otherwise benefit
from a fairer balancing of rights.

Hence, this article contends that, for copyright law to successfully
regulate the production and dissemination of and access to cultural works, it must be radically reformed. It concludes that society as a whole can only benefit from the new opportunities offered by digital technologies if copyright law properly adapts to the digital era by embracing—rather than opposing—the new realities of the digital world.

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