Copyright and contract

SABIP, the UK's Strategic Advisory Board for Intellectual Property Policy, published a report entitled "The Relationship Between Copyright and Contract Law" at the end of last week. This report, prepared by Estelle Derclaye, Martin Kretschmer, Marcella Favale and Richard Watt, is available online -- so there's no excuse for not reading it. The executive summary, a trim 20 pages of which many are blank or sparsely populated by text, can be accessed here, while the full report (a hefty 180 pages) lives here. The report was presented to a number of stakeholders at a workshop in March 2010, the proceedings of which you can peruse at your leisure here. Estelle Derclaye has indicated that she'll be pleased to answer any questions and address any pertinent comments. You can email her here.

By sheer coincidence I received a copy of another work on the same topic, Copyright, Contracts, Creators: New Media, New Rules, this week. The author is Giuseppina D'Agostino and the publisher is Edward Elgar. Giuseppina, Associate Professor in Canada's prestigious Osgoode Hall Law School, York University, is also the founding director of IP Osgoode. According to the book's publishers,

"The digital world has put content within arm’s reach of desire [What a lovely metaphor! Even though most digital content is undesirable to most internet users, the subjective element of one's own desire, reified in the content of one's choice, is rare further than a handful of clicks away]. No longer can an author be satisfied that her intellectual property is safely encased in a bound book, nor can a photographer know where his work will be displayed or shared, nor can a writer rest assured that her article will be consumed in the intended magazine or newspaper [It must be assumed that no content carrier or publisher has been resting assured for some while now]. The Internet-fueled recycling of existing works into new media is the greatest challenge to copyright law.

Copyright, Contracts, Creators evaluates the efficacy of current copyright law to address the contracting and use of creative works. It looks in particular at freelance works and argues that their copyright treatment on a national and international level is inadequate to resolve ambiguities in the contracting and uses of the work. Giuseppina D’Agostino discusses how historically laws and courts were more sympathetic to creators, and how the Internet revolution has shifted the scales to favor owners [a controversial position, which may depend on one's sectoral standpoint as well as the type of work created]. Consequently, creators often find themselves at opposing ends with copyright owners, and in a disproportionately weaker bargaining position that places tremendous strain on their livelihoods. She argues that this predicament puts society at risk of losing its most valued asset: professional creators. The author calls for a new framework to justify legislative provisions and resolve ambiguities while suggesting principles and mechanisms to address the inadequate treatment of freelance work ...".

This is a refreshing and challenging approach to a subject which has attracted relatively little systematic research and where both case law and commercial practice have had a substantially ad-hoc feel about them. It also provides ammunition that may be said to support both sides in the sporadic debate as to whether freelance creators benefit more from the freedom of the little-regulated marketplace as in common law countries or from the more moral and norm-driven approach of continental Europe. Definitely worth a good read.

Bibliographic data: xviii + 320 pages. Hardback. ISBN 978 1 84720 106 5. Price £79.95 (with online discount from the publisher £ 71.96).