Book Review: (Re)structuring Copyright, A Comprehensive Path to International Copyright Reform

This TechieKat was thrilled to put her paws on (Re)structuring Copyright, A Comprehensive Path to International Copyright Reform, written by Daniel J. Gervais, Milton R. Underwood Chair in Law and Director of Vanderbilt Intellectual Property Program at Vanderbilt University.

Food for thought!

Professor Gervais advocates that “[t]he IP regime can, and should, be calibrated to lead to human progress”. As a result, the author “proposes a way to structure copyright internationally to achieve” such an aim.

Gervais underscores that a comprehensive reform is not only required “to ensure that copyright meets its needs in the future … [but it] is also a far better alternative than the current path to a patchwork of regional and bilateral trade agreements, sometimes not compatible with one another, evolving in parallel with myriad new multilateral copyright treaties often ratified only by a fairly small number of countries, and then only years after the treaty’s adoption”.

The book is divided into two parts. The author emphasizes that it can be read chronologically or directly move to Part II, in which the proposed reforms are discussed.

Nevertheless, it is highly recommended not to skip Part I, in which Gervais provides a thorough analysis of the copyright system while identifying its structural flaws in light of the emerging new technologies, with a special focus on the online environment.

Therefore, in Part I, some key concepts of copyright such as originality, fixation, authorship, and the three-step test are addressed in a very engaging manner [Merpel purred on happiness when she found references to philosophy, literature, 3D Printing, Artificial Intelligence, and some of her favorite singers in this Part of the book!].

The impact of User Generated Content (UGC) on the copyright system is discussed in Chapter 5, ‘Vicarious and participative creativity’, which was one of the chapters this Kat enjoyed the most. The author suggests a taxonomy of three categories of UGC and analyzes the right of adaptation in view of the massive reuse and creation of content on the Internet.

In Part II, Professor Gervais proposes structural reforms. He argues that the current ‘one-size-fits-all’ copyright system “is both highly fragmented and unstructured. The current system rests on the assumption that a single set of rights, limitations and exceptions works optimally to serve the interests of authors and those of the people who use and reuse their works. That is simply not so”.

Therefore, in Chapter 8, Gervais suggests the quadrants of authorship. Each quadrant sets the threshold of protection at a higher level and underlines authors’ positions on attribution, commercial exploitation of their works, and enforcement matters. The quadrants are depicted dynamically, so authors may move from one quadrant to another if their interests change.

Then, Professor Gervais observes that the “next task is to structure the rights, exceptions and limitations”. Thus, in Chapter 9, he proposes realigning copyright rights at a molecular level. The author advocates for reshaping the right teleologically with the goal of distancing it from technical approaches. He suggests incorporating “proper limits in the scope of the right itself by aligning the right with its purpose” by using the flexibility provided by the three-step test.

As regards the exceptions and limitations (E&Ls), Gervais emphasizes they enable the “copyright system to adapt to change”. Thus, in Chapter 10, he proposes a taxonomy of E&Ls consisted of categories, internal balance, and external norms, broken down by type of user, use, country, and work (types grouped under the umbrella of categorizations). The author also suggests a list of principles derived from the parameters established in such taxonomy, which may guide national legislators to decide which E&Ls include in their copyright laws and how much “should be left to courts in applying”.

The role that collective management organizations (CMOs) may play to make “the copyright system work better” is addressed in Chapter 11. Professor Gervais also gives an overview on the function of CMOs for readers who are less familiar with the matter while offering valuable insights into CMOs operation concerning its legal structure, mode of rights acquisition, mode of price-setting, mode of licensing, and mode of distribution.

In Chapter 12, the author discusses the role formalities may play in restructuring copyright while analyzes some proposals “championing the imposition of new formalities” and its obstacles. Gervais advocates for “a reduced role for work registration … [and] a greater role for recordation of transfers … provided rules recognize the needs of foreign rights holders and do not amount to the imposition or the adoption of similar formalities by other countries”. He also offers a proposal composed of two principles and seven modalities, which “maintains incentives for voluntary registration”.

In the final Chapter, Professor Gervais examines the opportunities that developing countries may explore when formulating a policy framework that involves copyright restructuring proposals.

On top of this, the author provides a redraft of the Berne Convention (in the Epilogue) considering the proposals set out in the book, and a primer on fair use and fair dealing (Appendix 1).

(Re)structuring Copyright, A Comprehensive Path to International Copyright Reform is a page-turner book that sheds light on the structural flaws of the copyright framework while proposing substantial reforms in view of the challenges of the 21st century. This provocative title is a must-read not only for policymakers, academics, and practitioners focused on copyright but also for anyone who wants to delve into this field.

Book details:

ISBN: 978 1 78990 214 3

eISBN: 978 1 78536 950 6

$39.95 (Paperback)

$31.96 (e-book on eBooks.com, Google Play and kobo)

384 pp.

Available from Edward Elgar Publishing here.