It's complicated: copyright law and chaos theory

Book review by Francis Davey (barrister)

Complex Copyright: Mapping the Information Ecosystem, by Deborah Tussey

Published by Ashgate, 2012. ISBN: 9780754677840, Hard cover, 143 pp. Price: £60.00

Journal of Intellectual Property Law & Practice (2012), doi: 10.1093/jiplp/jps119, first published online: August 24, 2012

I am sure that, to many people, copyright law seems ‘complicated’ but this book is not about the kind of ‘complexity’ that ‘complex copyright’ is about.

It is nearly twenty years since ‘chaos theory’ intruded sufficiently into the mainstream, when it featured not only in Stoppard's Arcadia but was the professional interest of Jeff Goldblum's dinosaur-dodging mathematician in Jurassic Park.

Chaos theory was born in the late 19th century when mathematicians such as James Clerk Maxwell and Henri Poincaré began to study systems where small changes in setting up the system could lead to large changes in the result. An imperceptible difference in, say, the position of the Moon, could lead to a completely different set of orbits after the passage of time.

What Poincar√© and those who came after him realized was that, although one might have to give up on being able to predict outcomes exactly, there were techniques that let one predict some qualitative or statistical properties of the system. This area of study came to be called ‘chaos theory’.

By the 1980s it had achieved popular science status with James Glieck's book, Chaos: Making a New Science (Viking Penguin 1987) being nominated for the Pulitzer Prize. Its offspring, ‘complexity theory’, has been suggested as a solution to ‘traffic congestion, financial market crashes, terrorist attacks, pandemic viruses, and cancer’ (see Neil Johnson Two's Company, Three is Complexity, Oneworld 2007). The reality was much more modest. ‘Chaos theory’ and ‘complexity theory’ are not ‘theories’ in the sense of evolution or special relativity, but a collection of techniques that may be applied to some more or less general classes of chaotic situations. They can be powerful tools, but are not of universal application (HJ Jensen, Self-Organized Criticality, Emergent Complex Behavior in Physical and Biological Systems, Cambridge University Press 1998).

A further advance was the discovery of ‘self-organized criticality’ (SOC: see P Bak, C Tang and K Wiesenfeld, ‘Self-organized criticality: An explanation of the 1/f noise’ (1987) 59 Phys Rev Lett 381). In certain circumstances one can achieve a kind of balance between order and chaos. A system exhibiting SOC will tend towards a kind of equilibrium, exhibiting random behaviour but with well-defined statistical behaviour. A tiny change in the preparation of the system will lead to large changes in the equilibrium state but with the same statistical behaviour.

For example, it is almost certainly the case that if Hitler had died in infancy, history would have been very different but we would almost certainly have seen a series of wars in Europe; different but, if history truly exhibits SOC as claimed, the overall sweep would be much the same. Characteristically, studies of SOC systems focus on the whole rather than the parts, and it is often difficult to predict the behaviour of the whole merely from contemplating the parts of which it is made.

A characteristic feature of most SOC systems is scale invariance. The behaviour of the system is the same at all scales. For example, if you saw a plot of earthquake intensities over a period of time, it would be difficult to work out its scale merely from its shape (CF Richter and B Gutenberg, Seismicity of the Earth and Associated Phenomena, Princeton University Press 1949). Scale invariance turns up in enormously varied circumstances, not only in physics but also biology (T Gisiger, ‘Scale invariance in biology: coincidence or footprint of a universal mechanism?’ (2001) 76 Biol Rev 161) and economics (J Creedy and VL Martin (eds), Chaos and Non-Linear Models in Economics, Theory and Applications, Edward Elgar 1994).

Scale invariance is often a result of another feature common in SOC, self-similarity. This occurs where parts of the system resemble the whole. For example, the buds on a floret of a Romanesco broccoli resemble the floret itself, and the same is true of the buds on the buds.

Professor Tussey's thesis is that ‘copyright’, understood in its broadest sense to include the whole environment in which copyright law operates, taking in publishers, authors and consumers—is a complex adaptive system exhibiting self-organizing criticality and that this realization should inform policy and condition the way in which future research is conducted. The book is an exposition of that subject in five chapters.

Her first chapter, ‘Are publishers really like prairies?’, does not quite answer the question it poses. She presents us with many features that copyright shares with the prairie ecosystem—for example, feedback loops or complex interaction between large numbers of actors—but the whole discussion feels impressionistic. At best, Professor Tussey suggests that the two systems might be similar enough that one could draw conclusions from one to the other, for example by applying principles learned from conservation to copyright, but there was no attempt to build any models, even crude ones, or demonstrate that the similarity goes beyond a hunch.

The second chapter consists of an outline of justifications for copyright with a criticism that they have simply been taken for granted, rather than subjected to empirical testing.

Though reference is made to ‘labour’ and ‘personhood’ theories it is clear that the author is only concerned with a utilitarian view of copyright. In discussions of theory in later parts of the book it is assumed to be the only one that need be considered. In any case, it makes little sense to talk of ‘testing’ a theory based, for example, on natural rights since natural rights theories do not claim that copyright law is justified on the basis of its outcomes.

I felt the whole chapter was unnecessary. Competing theories were mentioned and then forgotten. The discussion was necessarily at a very surface level and contributed little to the book's main argument.

The third chapter purports to look at ‘systems analysis’ for complex copyright. It does contain some useful material, including a sketch of empirical research on the effect of copyright law. While it does not seem to be a comprehensive study, it might provide a useful starting point for someone wanting to find a way into the field.

No concrete examples are offered of applying systems analysis to copyright. Instead, generalities are offered, such as a need to take a holistic view or look at the social and cultural effects rather than the narrow economic outcomes.

The high point of the chapter is an argument that the failure of analysis results from, on the one hand, the practising lawyer's habit of focusing on detail to the neglect of the whole and, on the other, the academy's retreat from empirical analysis to theory—a trend Professor Tussey clearly hopes to change.

Chapter 4, which starts with neuroscience, is an apparent attempt to persuade the reader that, because the brain is a complex adaptive system, so must be copyright. That is a non sequitur. It is not suggested that brains and copyright exhibit self-similarity; rather, the brain must be intended to be one of the classes of atom which make up copyright as a system. As we have seen, the behaviour of the individual elements of a complex system is often quite unlike that of the whole system.

The rest of the chapter addresses the phenomenon of creativity. Here I think the book provides food for thought. Many arguments about copyright focus either on economic incentives to create or the availability of other works as a substrate for future creations, but individual creativity has other drivers than the economic and other constraints than the availability of works for re-use. We are encouraged to find ways to analyse copyright that consider how it might foster creativity from a more holistic point of view.

Her final chapter looks forward. She makes some general recommendations for policy makers such as ‘nudge—don't shove’, which seem reasonable enough, but I felt there was a failure firmly to establish that they followed from her analysis. The chapter concludes by calling for more research and, more importantly, more data. Here, she makes some useful suggestions about data collection—for instance, that large copyright interests might be required to supply data as a quid pro quo for copyright registration.

In conclusion, I felt this was a brave effort to cover a difficult subject in a relatively short space. It suffers by being too general, including material better covered elsewhere, which perhaps distracted from a more focused study of the new ideas Professor Tussey is bringing to the table.

It was hard to know who was the intended reader. The book covers ground that would be challenging for a beginner, but it also includes material that is elementary in nature.

The most serious failure is that complexity theory is never explained sufficiently clearly that one could usefully apply it. The whole book has an impressionistic feel. For example, having observed earlier that complex systems are frequently ‘non-linear’, with the mathematical meaning that outcomes are not proportionate to inputs, she elides this use of ‘linear’ meaning ‘in a line’ referring to thought processes observing simple cause and effect. The words are the same, but to a mathematician they have completely different meanings in context.

I am not sure that someone reading the book without already understanding complex adaptive systems would really have any idea what they were at the end of it. This is not helped by a lack of references to peer-reviewed material on complexity theory rather than to popular works.

If, as Professor Tussey claims, the publishing or copyright world does exhibit self-organizing criticality, where is the quantitative evidence of it? It seems entirely plausible that variables such as sales and profitability of works exhibit scale invariance as she claims, but there are no figures, diagrams or references to back up this claim. I would have welcomed rather more rigour.

The best that can be said for the book is that it is thought-provoking. There is much to chew over, but readers will have to do much of that work themselves. A first book on such a complex subject is always going to be difficult. I hope to see more in the future. For now, readers may be better advised to read Professor Tussey's original paper (D Tussey ‘Music on the Edge of Chaos: A Complex Systems Perspective on File Sharing’ (2005–2006) 37 Loy U Chi LJ 147) and follow references from there.

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