Book review: Kritika - Essays on Intellectual Property (vol 3)

Are you under the romantic spell of copyright law, so much so that its mutation into an aggressive economic tool protective of investments rather than creative labour has escaped your attention? Or, much like Fiona Macmillan in Kritika, have you been staring at the “ugly underbelly” of this mutant-copyright for quite some time now?  

Copyright is one of the many IP rights which, according to some has got out of hand (due to over-expansion across various dimensions) or is increasingly out of touch with reality (due to obsolescence). With the third volume of Kritica – Essays on Intellectual Property law, editors Haans Ullrich, Peter Drahos and Gustavo Ghidini, delivers an academic review of the IP system’s inadequacy. A tall order indeed.

Taken together, the overarching conclusion reached by the contributors is that fixing copyright, or any other IP right, would require re-tuning the core concepts of both national and international IP laws. Each chapter of the collection engages in a different theoretical discussion on the core concepts, values, and process that underpin t IP law. As such, the purpose of this collection is not to put forward concrete, ready-to-be-implemented proposals for reforms to ‘fix’ IP law, but to offer an ambitious academic investigation into first principles.

In Chapter 1, Macmillan stresses the lack of coherence between the old (romantic) and new (economic) logic of international copyright law, the concept of international cultural rights and international cultural heritage protection. In the context of this discussion, Macmillan reminds us that it is only with the advent of the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPs), following the creation of the World Trade Organization, that international copyright law became an economic regulatory tool. It is therefore not too late (nor impossible) to re-calibrate copyright. 

Mohammed El Said (Chapter 5) brings a refreshing perspective by contrasting the conventional (i.e., Western) wisdom of intellectual property, enshrined in one-size-fits-all international conventions such as TRIPs, with Islamic principles. For example, El Said describes the ways in which the notion of human-owned property or a ‘public good’ operates in legal systems influenced by religious teachings which view God, and not individuals or corporations, at as the ‘creator of everything in the universe’.

According to Islamic principles, individuals do not have a natural or fundamental (property) right in their creations or inventions but are to be seen as the custodians of God’s work, who has placed his universe in their hands. This conceptualization challenges the proposition that the bond between the subject-matter protected by intellectual property rights and their (human) creator, or inventor, is as self-evident as it has been viewed in most Western jurisdictions (notably through copyright and patent laws).

In a chapter dedicated to the overexpansion (termed ‘hypertrophy’) of German copyright law (Chapter 2), Thomas Hoeren reevaluates almost every foundational aspect of authors’ rights, going from technical rules (e.g. the scope and length of protection) to the abstract notions of ‘information’, ‘law’ and ‘theory’. This academic exercise ends with a somewhat obscure “diagnosis” of missing “procedural meta-rules” to empower access to information in the implementation of copyright law (p. 46). Practical examples would have been welcome to illustrate the concrete implications of this conclusion. 

Overall, this book seeks to bring together highly conceptual and theoretical criticisms of the IP system. For this reason, this collection of essays will be of interest, primarily, to academics and advanced postgraduate researchers.

Book reviewed: Kritika: Essays on Intellectual Property, Volume 3 (2018) Edited by Hanns Ullrich, Peter Drahos, Gustavo Ghidini. Published by Edward Elgar. Available for purchase online from £21.60 here, here and here.