Book Review: Copyright's Arc

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In Copyright’s Arc, Martin Skladany (Penn State Dickinson Law) describes copyright as a global force, which is nevertheless governed by territorial laws and affected by national or regional dynamics. He rejects any ‘one-size-fits-all’ global copyright regime, and posits that copyright should be adapted to local realities in order to serve a higher purpose: furthering human dignity through access to art. 

Using the World Bank’s classification of countries as developed, middle-income, or developing (p2, n2), the ‘arc’ of copyright consists of low-intensity copyright regimes in developed and developing countries and moderate-intensity protection in middle-income countries. Skladany frames this in the first substantive chapter, Problems of Global Copyright, by reference to the standardisation of norms caused by trade agreements such as the WTO’s TRIPS Agreement (and subsequent TRIPS-plus measures), as well as bilateral treaties allowing more economically powerful developed countries to impose their copyright standards on less developed countries. 

Accordingly, the book’s villain is ‘Big Copyright’ (otherwise referred to as ‘Hollywood’, ‘entertainment companies’ or ‘entertainment multinationals’), which, he argues, has captured global public and political discourse surrounding copyright policy through deep pockets and political lobbying in the USA. 

This contextualisation is followed by three chapters laying out what Skladansky sees as excessive copyright’s effects in developed, middle-income, and developing countries, and potential policy solutions. The relationship between art and human dignity is multifaceted: on one hand, reducing copyright protection in developing countries (in order to increase the flow of international content, even if it is slightly older than would be available in its domestic markets) is suggested as a means of promoting the rule of law and human rights through depicting progressive values on-screen. 

He rejects any accusation of cultural imperialism on the basis that some abuses simply ought to be universally unacceptable, such as female genital mutilation. However, the question remains of how likely it would be for those who believe in such extreme abuses to watch, say, Veronica Mars, internalise the messages sent by its "strong, independent" female protagonist (p34), and be able to overcome countervailing societal messaging. Similarly, his characterisation of art as being capable of causing viewers' self-examination, chipping away at their bigotry (p36), seems a little too absolute in the eyes of this Kat (writing from Munich, home to the former National Socialist Haus der Deutschen Kunst). 

On the other, the same policy adjustment in developed countries could allow people to reclaim their dignity, creativity, and productivity from the grip of the addictive stream of content pumped out by Hollywood. Skladany also points to difficulties in developed countries related to artistic collaboration and sampling due to orphan works and overly-long terms of protection, but his primary focus is not on the immediate effects of excessive copyright, but rather the indirect consequence of the way in which copyright serves the profit incentive, generating homogenous yet addictive entertainment content. 

In middle-income countries, however, a more moderate copyright regime might incentivise local creators to make art which fosters an inclusive national identity. Skladany argues that extreme copyright favours Big Copyright, preventing struggling local creators from borrowing from others' work. The same corporate entertainment which might help to instil basic respect for human rights and diversity in developing countries is not sufficiently tailored to meet middle-income nation-building needs. 

The book continues with chapters on Interaction between Copyright Regimes and a more practical consideration of Transitioning to Copyright’s Arc, before concluding. Of course, Skladany recognises that there are practical limitations to his thesis being implemented, especially bearing in mind the huge variety of national contexts and priorities. He argues that an adjustment to copyright legislation could bring Big Copyright around, with the idea of directly helping human development being the most attractive incentive, while responding to reviewer feedback and anticipating various counter-arguments throughout.

He buttresses his arguments by reference to art (including popular culture), history, and philosophy, such as quoting local creators in middle-income countries about the purpose of their art (p5). This is more illuminating than the use of an extract from Waugh’s Decline and Fall to introduce the argument that copyright recalibration in the USA could causally reduce the number of suicides (p139). Similarly, while referring to Artemisia Gentileschi (p141) as an example of a great artist is laudable, though not without controversy, given the invisibility of women in conventional art history, using the statistic that around 25% of women suffer intimate partner violence to support the claim that piracy would still exist under any copyright regime (p170) does not meaningfully further the point that violations of laws will always occur. By contrast, sections on development issues such as the Challenges of Ethnic Diversity in middle-income countries (p93-97) make much more thorough reference to empirical evidence. 

Overall, Copyright's Arc serves as an interesting proposal for a wholesale reorientation of the global copyright landscape. Viewing copyright policy in this way - as a holistic, globally-integrated whole, which must serve human flourishing and development - offers a new perspective on the debate about corporate capture of policy-making. 

Publisher: Cambridge University Press

Publication Date: September 2020

Extent: 220 pages

ISBN: 9781108723558