Reviewer: Charlotte Waelde (University of Exeter)
Journal of Intellectual Property Law & Practice (2011), doi: 10.1093/jiplp/jpr097, first published online: July 6, 2011
The methodology employed by the editors has been to pair essays—a non-lawyer with a lawyer. Mostly, the non-lawyers have taken first place with the comment being made by the lawyer. In general, this has been successful. Tanya Aplin for instance in her chapter ‘Reflections on measuring text reuse from a copyright law perspective’ comments on that of Paul Cough ‘Measuring text reuse in the news industry’ and in so doing skilfully pulls threads and themes from Paul's work in building her own. Jonathan Griffiths is similarly adept in drawing out points of agreement and of difference between his ideas in ‘Copyright's imperfect republic and the artistic commonwealth’ and those of Daniel McClean which are presented in ‘Piracy and authorship in contemporary art’. Daniel's own interdisciplinarity as an independent art curator and a lawyer shines through in his chapter. So the methodology certainly meets the editors’ self-imposed task and results in a deep and reflective approach to the multi-faceted issues raised by copyright infringement, probably more so than has hitherto been the case in other studies. It would be an interesting, and challenging, step to get the discipline experts to write one chapter between them.
Does the collection also meet the desire to address the ‘vital and overarching question of whether strong copyright laws, rigorously enforced impede rather than promote creativity?’ This is a big question—and one that lawyers argue about but can often find it difficult to produce evidence in support. How, after all, does a lawyer actually know that creativity is being impeded? Just because an individual can't do one thing with an existing work does not mean that they can't do something else. The ‘something else’ might not be what they had originally intended but does that make it any less creative? So do the other disciplines help to shed some light on this question? However, I digress a little.
I have always found the use of the term ‘piracy’ in connection with copyright infringement somewhat challenging. It seems to turn all of us into pariahs (unless you first think of Johnny Depp). So the inclusion of chapters on ‘Nineteenth-century Anglo-US copyright relations: the language of piracy versus the moral high ground’ by Catherine Seville paired with ‘Language, practice and history’ by Adrian Johns are most welcome in helping to shed some light on this area. Relatedly I also really enjoyed the clutch of chapters dealing with copyright and plagiarism: Isabella Alexander's chapter on ‘Inspiration or Infringement: the plagiarist in court’, and her second chapter ‘The genius and the labourer: authorship in eighteenth-and nineteenth-century copyright law’ responding to Nick Groom's chapter ‘Unoriginal genius: plagiarism and the construction of “Romantic” author’. The three chapters give the reader much food for thought on the interaction between copyright infringement and plagiarism.
Delving deeper into the book, David Lefranc, translated by Sébastien Oddos, and Jane Ginsburg share a lively debate on the origins of contrefaçon in French Law in ‘The metamorphosis of contrefaçon in French copyright law’ and ‘A common lawyer's perspective on contrefaçon’, respectively. In a most careful and insightful chapter ‘Copyright infringement, “free-riding” and the lifeworld’ (and in a change to the norm of having the main chapter written by a non-lawyer), Anne Barron gives an account of the law and economics approach to copyright infringement and its limits to which Jonathan Aldred, an economist, responds in his piece ‘Copyright and the limits of law-and-economics analysis’ in which, while taking issue with a few points made by Barron, shares her concerns in relation to the central tenet of her argument over the limitations of the law and economics approach. We move to music in ‘Reggae open source: how the absence of copyright enabled the emergence of popular music in Jamaica’ by Jason Toynbee twinned with ‘Free-riding on the riddim’? ‘Open source, copyright law and reggae music in Jamaica’ by Johnson Okpaluba, by virtue of which we are privy to a sprightly argument as to the effect of copyright on the development of reggae in Jamaica; and on to an examination of the motivations for file sharing in ‘Copyright infringement: a criminological perspective’ by Loraine Gelsthorpe paired with ‘Towards a clearer understanding of the file-sharing phenomenon? Comments on a criminological perspective’ by Shira Perlmutter. Other pairings include Alan Durant on ‘“Substantial similarity of expression” in copyright infringement actions: a linguistic perspective’ with Graeme Dinwoodie ‘Refining notions of idea and expression through linguistic analysis’; and Jon Crowcroft on ‘Copyright, piracy and software’ with Jennifer Davis with ‘Of plots, puddings and draught-excluders: the law as it applies to the infringement of computer programs’.
So, having read this rich and diverse set of essays, are we any closer to being able to answer the question that was posed at the outset of the book? Do strong copyright laws, rigorously enforced, impede rather than promote creativity? Well, I don't know. But what I do know is that I thoroughly enjoyed this collection and certainly regard it as a ‘must have’ for any copyright scholar and fully expect to see it enter the bibliographies of the theses and dissertations of the many students who are passionate about this subject. As the reader of this review will gather, I highly recommend it for any copyright collection.
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