[Book Review] The Routledge Companion to Copyright and Creativity in the 21st Century

This is a review of The Routledge Companion to Copyright and Creativity in the 21st Century, edited by Michelle Bogre (Parsons School of Design at The New School) and Nancy Wolff (Cowan, DeBaets, Abrahams and Sheppard, LLP). The book aims to assess whether the current US copyright system is adequately equipped to address the contemporary challenges faced by authors.

The book covers various categories of copyrightable works and provides in-depth discussions on each, exploring both current and emerging challenges for and obstacles against creators. Additionally, the book features several interviews with individuals from non-legal professions, making it a valuable resource not only for IP lawyers, but also for stakeholders, such as photographers, fashion designers, musicians, and authors.

Copyright Basics

The book begins by explaining some basic copyright law concepts (e.g., “copyright protects creative expression” [p. 4], explaining the Digital Millennium Copyright Act (DMCA) [pp. 11-12], explaining how “moral rights recognize that a creator deserves respect for creativity” [p. 13]) to serve as a reference point, especially for lay readers.

Exploring Some Categories of Copyrightable Works

After setting the scene, the book delves into in-depth discussions on several types of works that are, in essence, protectable by copyright law but face significant challenges primarily posed by technological developments.

In Part 2, the book focuses on literary works and, across five chapters, it (i) addresses piracy and counterfeiting issues, offering suggestions to better combat them, including “modify[ing] the law to create a ‘notice and stay-down’ process”, “adding a standard of ‘general awareness of infringement’”, and ensuring that authors can easily “obtain the assistance of criminal law enforcement” (p. 24), (ii) discusses the copyrightability of fictional characters, independent of the literary works in which they appear, (iii) examines the fair use doctrine, considering whether bench or jury trials are the more appropriate means to determine if a specific use is fair, and argues that the “flexibility and lack of any bright-line rules are the strengths of fair use” compelling the courts to “adapt to the new technological world” (p. 55), and (iv) provides guidance for self-publishing authors.

Part 3 covers visual arts, which (i) compares inspiration to copying and advises creators that “it is safer … to merely borrow an idea or concept but then make his or her own creative choices … [to] depict the idea in his or her own creative, expressive way” (p. 76), (ii) draws insights from the originality of photographs to address the copyrightability of emerging trends, including Google Street View, deep fakes, and selfies, (iii) demonstrates the difficulty of ensuring “human authorship” in photojournalism, given the long history of aerial photography and now the widespread use of drones for capturing images, (iv) presents a new challenge for photographers due to social media, namely the terms of service that pre-empt longstanding copyright rules, and guides them in mitigating their circumstances, and (v) examines how the courts fail to accurately apply the “transformative use” factor and how the internet users, as well as courts, believe that the “World Wide Web is the ‘public domain’ and anything found there is free for the taking” (pp. 92-93) throughout four chapters.

The book then moves on to fine arts in Part 4. After emphasising how having accurate knowledge of copyright is “immensely beneficial” (p. 132) for art collectors to avoid overlooking or causing potential copyright infringements, it discusses the copyrightability of street art under the Visual Artists Rights Act (VARA) by referencing the 5Pointz case. It explores whether appropriation art causes copyright infringement or qualifies as an instance of fair use, which should arguably focus more on the “necessity” of appropriating a specific image rather than the transformativeness criterion (p. 149). The Part concludes with an interview on Banksy’s sensational act of shredding Girl with Balloon to stress the changing perception of “authorship”.

The next Part looks into the music industry, beginning by stating that since the introduction of hip-hop and rap, copyright law has become insufficient to address issues arising from music mashups and that a new compulsory licensing scheme is necessary (pp. 179-182). It then discusses how streaming has impacted the revenues of musicians and underlines the necessity for the Congress to intervene in the free market of streaming. Part 5 also draws attention to the issue of “subconscious copying” due to a “forgotten memory return[ing] without being recognized, [which] is believed to be something new and original” (p.195) and argues for some flexibility in copyright law to acknowledge these unintentional reproductions. Additionally, this part features interviews with musicians, which provide contradictory opinions on the fair use doctrine: while one believes that “the moment [musicians] write something, it is [theirs]” (p. 203), the other thinks that musicians are likely to benefit more from leaving music free to audiences than from keeping their music unavailable via copyright law.

Part 6 provides intriguing discussions on video games and virtual realities across three chapters. It (i) underlines the complexities of virtual worlds created by video games by referring to the intersection of intellectual property rights and publicity rights, (ii) examines the virtual currency used in video games and evaluates the applicability of the laws regulating physical property, mainly intellectual property rules, to virtual ones, and also (iii) discusses whether “Loot Boxes” should be included in the scope of current provisions regulating gambling.

Finally, in Part 7, the book examines the fashion industry, and in three chapters it (i) demonstrates how copyright can be used as a powerful weapon against creativity, rather than promoting it, by some fashion companies that register public domain elements with the US Copyright Office (potentially due to the differences between the evaluation processes for patent and trade mark registration applications, and copyright registration applications), and eventually become capable of preventing others from using those elements in their fashion designs (mainly because of the overreliance of courts to registration certificates, which should actually merely constitute prima facie evidence), (ii) overviews the “colorful history” (p. 273) of the interaction between fashion design and copyright in the US, presenting case studies from leading fashion companies that have resorted aggressively to trade mark and trade dress protections to defend their designs against design piracy, and (iii) discusses the current key issues in fashion law, the so-called impacts of the Star Athletica case on the copyrightability of fashion designs, and the differences in protection mechanisms offered to fashion designs by the EU and the US. It is argued that although it is not likely for the US to introduce fashion design protection, it is not a significant concern, as “trademark offers the best protection of all” to fashion designers (p. 281).

Technology and Copyright

After exploring how copyright law deals with specific categories of works, Part 8 focuses on a broader issue: technology’s impact on copyright protection. It questions whether the DMCA is on the right track in addressing the challenges of the 21st century or whether technology has already outpaced the law. Additionally, it evaluates the issues emerging from the common use of generative AI tools in creative industries, particularly in literature, and discusses the role of copyright trolls, primarily affecting photographers, as well as photo and video aggregators.

How about the Future of Copyright?

The book concludes with a discussion centred on the future of copyright, focusing primarily on fair use, DMCA section 512, the issue of sharing content online, AI-assisted creations, and the modernisation of the copyright ecosystem. The chapter also includes predictions from authors and interviewees of the book, regarding what will be next in copyright law.

Comments

This Kat believes that the book is likely to serve as a reader-friendly, comprehensive, and thought-provoking guide for those working in the creative industries and facing challenges brought about by the emerging technologies of the 21st century. In addition to the academic articles, the inclusion of landmark cases at the end of each part -highly relevant to the discussions throughout- and interviews with experts, such as musicians and fashion lawyers, is a compelling idea that makes reading the book even more enjoyable while also providing interdisciplinary insights into the issues discussed.

Another point that caught this Kat’s attention was the frequent mention of the fair use doctrine in various authors’ discussions. It seems that the copyright exceptions (whether under the "fair use doctrine" in the US or as instances of "fair dealing" in European copyright systems) will play a significant role in addressing copyright law-related issues arising from contemporary technologies, making it more important than ever to truly understand, interpret, and apply this defence.

Details

Publisher: Routledge, 2024

Extent: 386 pages

Format: Paperback, Hardback, and eBook

ISBN: 9780367523114