Book Review: Non-Conventional Copyright, Do New and Atypical Works Deserve Protection?

As a lecturer, this Kat is often asked by her students about whether non-conventional works such as comedy, graffiti or tattoos can be protected by copyright, which always makes for an dynamic class debate. The reason is, in most circumstances it seems, because there are profound arguments both for and against expanding copyright into these new realms. In this book, Non-Conventional Copyright, Do New and Atypical Works Deserve Protection?, editors Enrico Bonadio and Nicola Lucchi, bring together a collection of chapters authored by copyright scholars and lawyers from around the world to synthesise this debate.

In the forward of the book, Peter Yu leaves us with no doubts about the necessity of a text that covers the non-conventional subject matters in copyright that “lurk at the fringes and receive no or very little protection.” These topics explore a key question in copyright today: should copyright be expanded, and if so, how and why?

The editors explain, in the introduction, that the aim of the book is to offer a constructive view of the changing nature of contemporary creativity and to spur on the debate around a more open a flexible copyright system which is capable of embracing new forms of creative output. The authors address the following copyright topics within this debate: copyright subject matter; originality; fixation; the functionality exception; the author requirement; the idea/expression dichotomy; and the debate of whether illegal or immoral works should be protected.

The presentation of the book focuses on the forms of expression from tattoos, graffiti and jokes to 3D printing files, DNA sequences and artificial intelligence. There are 22 chapters, structured into four parts; art, music and culture, industry and science, and illegality and immorality.

This is one of the most fun copyright book that this Kat has read, as it throws up all the kinds of questions that copyright enthusiasts love to play with; can you have copyright protection in a magic trick? What about a joke? Or a DJ set? What about works that are illegal or immoral, should copyright still protect them? And if yes to any of the above, to what extent? And on what grounds? The authors of each chapter carefully deliberate over the arguments in favour or against extending copyright protection to non-conventional works, as well as other alternative solutions.

Tang’s chapter begins with reference to Robert Smithson’s Spiral Jetty an iconic earthwork or land art. In light of this, Tang argues that copyright law needs to expand beyond being medium-specific and self-contained to be more like life, and to expand the realm of possibilities. Tang suggests, courts should also be open to non-traditional remedies in addressing these new mediums.

The cover image of the book is called “holding hands” by two graffiti artists Stik and LA2. In chapter 4, Bonadio looks at street art, graffiti and copyright; examining to what extent street art and graffiti can be protected primarily in the US and UK. Bonadio argues that street art and graffiti deserve, and need, copyright and moral rights protection. 

The importance of comedy in society is demonstrated, in chapter 10, by Gates, quoting Mark Twain "humour is mankind's greatest blessing." Focusing on stand-up comedy, Gates argues that a substantial overall of copyright for the benefit of comedy is not the best solution, but that courts should give greater recognition to the choice and arrangement of facts in a joke delivery in cases of "joke theft". 

Whilst many of the chapters do suggest that the non-conventional work can, or should, be protected, not all do. For example, in chapter 12, Mezei argues that the protection of sports moves would be detrimental to the normal functioning of amateur and professional sports and go against the fundamental purpose of copyright. The chapters that do not advocate for extension of copyright do recognise that there are legal or self-regulatory measures that could instead be utilised, for example in the instance of the sports moves, the industry might adopt an internal honouring method, Mezei suggests. In the case of jokes, Gates, suggests in addition to some legal reform, a Comedy Hub to establish a convenient way of licensing jokes between comedians.

This book would appeal to anyone with an interest in copyright, including practitioners, lawyers, legislators, scholars and students alike. It is easily accessible to non-experts in the delivery that focus on the creative expression, but the in-depth analysis also captures the minds of those well versed in copyright. It’s got all the contemporary buzzwords it needs to get anyone excited about debating copyright, and raises some important questions about the future and evolution of copyright protection and creativity. 

Extent: 520 pp
Hardback Price: £130.00
Available from the Edward Elgar website for £117.00
ISBN: 978 1 78643 406 7