The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy
InternKats: Rose Hughes, Ieva Giedrimaite, and Cecilia Sbrolli
SpecialKats: Verónica Rodríguez Arguijo (TechieKat), Hayleigh Bosher (Book Review Editor), and Tian Lu (Asia Correspondent).

Thursday, 1 March 2018

Book Review: Copyright User Rights, Contracts and The Erosion of Property

As some readers may be aware, this Kat proudly formed part of the team that created the online copyright education resource: The website aims to make UK copyright law accessible to copyright users defined as creators, media professionals, entrepreneurs, students, and members of the public.

So, she was very intrigued by the title of this book: “Copyright User Rights, Contracts and the Erosion of Property” by Dr Pascale Chapdelaine (Associate Professor at the Faculty of Law at the University of Windsor, Canada). Chapdelaine defines her copyright user rights in the broadest sense, including active and passive users, who might be individuals or organisations and considers in this book what their rights are and what they should be.

Previously, literature on copyright interests has tended to focus on the copyright holder’s rights. However, riding on the momentum of the more recent focus on the interest of the users, this book presents a radical diversion to the perspective of the rights of the user; considering questions such as do copyright users have rights? And what place should copyright users have in copyright law? Taking a step further, the book addresses these questions from the approach of copyright user rights as private rights through property, contracts, copyright law, and remedies.

The book is divided into three parts. The first considers the nature and meaning of copyright user rights; focusing on the rights and exceptions of copyright protected works. Chapdelaine argues that copyright user rights fare poorly compared to other forms of personal property. In an analysis of copyright exceptions, from the perspective of copyright user rights, Chapdelaine, believes that in their current form, the exceptions may be better characterized as privileges, since they are not mandatory, and can be waived by contract. Looking at the scope of copyright from this angle, some interesting questions arise, such as; does the law provide adequate remedies to users against copyright holders that restrict their legitimate uses and enjoyment of copyright works? In light of the lack of statutory obligations on copyright owners and remedies for copyright users, Chapdelaine, sets out alternative legal avenues for users, such as breach of contract, sale of goods law, consumer law, good faith, or tort law.

Dr Pascale Chapdelaine
The second part argues that the inadequacies in copyright regulation are largely a result of a confusion concerning tangible and intangible goods; attributing the consequential weaknesses in copyright law to a misconception that a copyright good requires a physical object. This discussion moves to consider the increased presence of digital locks and technical restraints in physical objects, which magnifies the absence of copyright user rights.

The third part of the book builds upon the analysis to reframe copyright regulation, taking into account copyright user rights as they relate to the user experience and the function of personal property. Drawing on property theory, copyright theory and economic efficiency, Chapdelaine constructs a basis for expanding and refining the definition of copyright user rights. In light of this, two guiding principles are identified. The first calls for better cohesion between copyright, private and public law, and the second requires that copyright regulation shift to improve the balance between the competing interests of copyright owners, users and intermediates.

This book gives much needed consideration to what copyright user rights are and should be, within the context of the digital environment. Arguing that for copyright to prevail in the future, it must adjust to regulate new forms of creativity and consumption. It suggests that in order to achieve this, an approach that transcends the tangible and intangible confusion, and applies technological neutrality as a principle of statutory interpretation is required.

The book ambitiously takes on an international perspective, considering in particular Canadian copyright law, considering also US, EU, UK, France and Australia. It proposes to be of use to legislators, the judiciary, scholars, practitioners, copyright holders, user groups, and civil society.

Copyright User Rights, Contracts and the Erosion of Property is published by Oxford University Press (2017) Hardback and e-book available, published: 14 September 2017, 256 Pages, 234x156mm, ISBN: 9780198754794, available here for £70.00.

1 comment:

Anonymous said...

The fashionable idea that copyright exceptions can in any sense be "rights" is a regrettable confusion, aided of course by the rather harmless comments of the Canadian Supreme Court in the CHH case. The politics of copyright has distorted academics' vision. Copyright law does not grant "rights" to users, save in a non-legal sense, although other laws may. For example, Article 6 of the 2001 Copyright Directive users of TPM-protected works have certain entitlements, but these are not copyright exceptions.

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