HERA – Of Authorship and Originality (OOR)
OOR is a multi-disciplinary collaboration of IViR (University of Amsterdam, The Netherlands), Infomedia (University of Bergen, Norway) and the Centre for Intellectual Property and Information Law (University of Cambridge, United Kingdom). The project queries how insights from literary theory, music studies, film/visual studies and other Humanities’ disciplines can help articulate copyright norms that enable sustainable creative practices in the digital environment. Our focus is on two interrelated, key concepts in copyright law: the author and the work, which are addressed in three interrelated projects.
At the University of Bergen, prof. Jostein Gripsrud is principal investigator of the project ‘Authorship in Collective Arts’, with post-doc Dr. Erlend Lavik as researcher. In Cambridge, prof. Lionel Bently is principal investigator for the project ‘Multiplicity of Authors’, in which Dr Laura Biron and Dr Elena Cooper take part as post-doctoral researcher. Van Eechoud is overall project lead and principal investigator for the project ‘The Work as Creative Expression”, on which Dr. Stef van Gompel is post-doctoral researcher.
The individual projects:
Authorship in Collective Arts
Department of Information Science and Media Studies (Infomedia)
University of Bergen
Prof. Jostein Gripsrud, principal investigator
Dr. Erlend Lavik, post-doc researcher
This project’s theoretical challenge lies in finding a way to modify the traditional Romanticist notion of authorship that still inform today’s copyright laws, particularly in view of the characteristics of collaborative production of artworks in different media and genres, without giving up on the idea that creators or authors of such works must retain a right to certain forms of control of the subsequent use of their works. In collaboration with our partners in the field of law, we wish to identify ways in which a renewed understanding could and should impact on the making and the interpretation of copyright law. While exploring theoretical contributions in several disciplines, our empirical focus will be creative processes in audiovisual production and popular music. Both cultural forms are heavily dependent on digital technologies and are thoroughly marked by collaborative forms of production. The Bergen project will study these two media and genres using well-proven ethnographic methodologies (participant observation and semi-structured interviews).
Multiplicity of Authors
Centre for Intellectual Property and Information Law (CIPIL)
Faculty of Law, University of Cambridge
Prof. Lionel Bently, principal investigator
Dr. Laura Biron, post-doc researcher
Dr. Elena Cooper, post-doc researcher
At present, by and large, national rules on authorship and copyright ownership are still based on the author as an individual autonomous agent operating in isolation. Within the overall theme of the research proposal on creative collaboration in the digital environment and copyright’s response to facilitate such creative expression (or rather lack of it), the project by CIPIL will focus on problems of multiple authorship. Central in this stream are the relations between contributors: how roles are perceived within creative communities, and the status that copyright law attaches to the various roles, notably the allocation of authorial control both as regards economic rights and immaterial interests (the ’moral rights’ of the author). Drawing upon the authorship theories explored in the initial phase of the CRP, and incorporating the results of the case studies by the Infomedia, the CIPIL project will re-evaluate notions of co-authorship and develop approaches that are conducive to collaborative creative production.
The Work as Creative Expression
Institute for Information Law (IViR)
Faculty of Law, University of Amsterdam
Dr. Mireille van Eechoud, principal investigator and overall project leader
Stef van Gompel, post-doc researcher
Prof. dr. Bernt Hugenholtz, advisor
This project queries the continued viability of the ’original work of authorship’ as a legal object. From an economic perspective, the delineation of copyright subject-matter is ofcourse necessary in order to make it a marketable entity. Copyright law thus has a natural tendency to view creative expression as a ’thing’, to which rights are attached. At the same time, the law in many jurisdictions now seems to have evolved to the point where ’original’ and ’creative’ seem to be synonymous terms, both meaning little more than ’not directly copied’ or ’resulting from a modicum of freedom of choice’. In this stream the focus is on insights humanities scholarship can provide to critically rethink the concept of ‘work of authorship’. We are particularly interested in how it may inform a copyright policy that better facilitates the needs of creators to engage with existing works and materials without having to seek prior authorisation. Such a rethink also needs to consider the current harmonised right of reproduction, which is essentially a very broad technical concept, lacking normative meaning. We are also particularly interested in how copyright theory can better recognise art forms and practices where the creative value is in the processes as much (or even more so) as in the final product or artefact.
Publications
Biron, L.; Cooper, E.
Authorship, Aesthetics and the Artworld: Reforming Copyright's Joint Authorship Doctrine Journal Article
In: Law and Philosophy, (1), pp. 55-85., 2016.
@article{Biron2016,
title = {Authorship, Aesthetics and the Artworld: Reforming Copyright's Joint Authorship Doctrine},
author = {L. Biron and E. Cooper},
url = {http://www.ivir.nl/publicaties/download/1715.pdf},
year = {2016},
date = {2016-01-15},
journal = {Law and Philosophy},
number = {1},
pages = {55-85.},
abstract = {This article considers the extent to which insights from the philosophy of art can assist copyright law in identifying the author or authors of works to which many have contributed. In doing so, it looks to institutional theories of art, which go beyond a simple bifurcation of ‘author’ and ‘work’, and focus instead on broader determinants of an art work’s production, such as the ‘artworld’. It puts forward a framework focusing on three components of authorship supported by these theories: role, authority and intention. The paper then draws attention to some important challenges that this framework raises for copyright law’s joint authorship doctrine in the UK and USA, and suggests some ways in which copyright law might be reformed, so as to allow copyright to retain its own benchmarks while also bringing conceptions of authorship in law and art closer together.
},
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This article considers the extent to which insights from the philosophy of art can assist copyright law in identifying the author or authors of works to which many have contributed. In doing so, it looks to institutional theories of art, which go beyond a simple bifurcation of ‘author’ and ‘work’, and focus instead on broader determinants of an art work’s production, such as the ‘artworld’. It puts forward a framework focusing on three components of authorship supported by these theories: role, authority and intention. The paper then draws attention to some important challenges that this framework raises for copyright law’s joint authorship doctrine in the UK and USA, and suggests some ways in which copyright law might be reformed, so as to allow copyright to retain its own benchmarks while also bringing conceptions of authorship in law and art closer together.
Cooper, E.
Joint authorship and copyright in comparative perspective: the emergence of divergence in the UK and USA Journal Article
In: Journal of the Copyright Society of the USA, 62 (2), pp. 245-276, 2015.
@article{Cooper2015b,
title = {Joint authorship and copyright in comparative perspective: the emergence of divergence in the UK and USA},
author = {Cooper, E.},
url = {http://eprints.gla.ac.uk/100708/7/100708.pdf},
year = {2015},
date = {2015-07-13},
journal = {Journal of the Copyright Society of the USA},
volume = {62},
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Cooper, E.
Copyright and mass social authorship: a case study of the making of the Oxford English dictionary Journal Article
In: Social and Legal Studies, 24 (4), pp. 509-530, 2015.
@article{Cooper2015,
title = {Copyright and mass social authorship: a case study of the making of the Oxford English dictionary},
author = {Cooper, E.},
url = {https://journals.sagepub.com/doi/10.1177/0964663914565848},
doi = {10.1177/0964663914565848},
year = {2015},
date = {2015-02-04},
journal = {Social and Legal Studies},
volume = {24},
number = {4},
pages = {509-530},
abstract = {Social authorship ventures involving masses of volunteers like Wikipedia are thought to be a phenomenon enabled by digital technology, presenting new challenges for copyright law. By contrast, the case study explored in this article uncovers copyright issues considered in relation to a nineteenth century social authorship precedent: the seventy-year process of compiling the first edition of the Oxford English Dictionary instigated by the not-for-profit Philological Society in 1858 which involved thousands of casually organised volunteer readers and sub-editors. Drawing on extensive original archival research, the article uses the case study as a means of critically reflecting on the claims of existing interdisciplinary literature concerning copyright and ‘authorship’: unlike the claims of the so-called Romanticism thesis, the article argues that copyright law supported an understanding of NED authorship as collaborative and democratic. Further, in uncovering the practical solutions which lawyers considered in debating issues relating to title and rights clearance, the article uses the nineteenth century experience as a vantage point for considering how these issues are approached today: despite the very different context, the copyright problems and solutions debated in the nineteenth century demonstrate remarkable continuity with those considered in relation to social authorship projects today.},
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Social authorship ventures involving masses of volunteers like Wikipedia are thought to be a phenomenon enabled by digital technology, presenting new challenges for copyright law. By contrast, the case study explored in this article uncovers copyright issues considered in relation to a nineteenth century social authorship precedent: the seventy-year process of compiling the first edition of the Oxford English Dictionary instigated by the not-for-profit Philological Society in 1858 which involved thousands of casually organised volunteer readers and sub-editors. Drawing on extensive original archival research, the article uses the case study as a means of critically reflecting on the claims of existing interdisciplinary literature concerning copyright and ‘authorship’: unlike the claims of the so-called Romanticism thesis, the article argues that copyright law supported an understanding of NED authorship as collaborative and democratic. Further, in uncovering the practical solutions which lawyers considered in debating issues relating to title and rights clearance, the article uses the nineteenth century experience as a vantage point for considering how these issues are approached today: despite the very different context, the copyright problems and solutions debated in the nineteenth century demonstrate remarkable continuity with those considered in relation to social authorship projects today.
Lavik, E.
Romantic authorship in copyright law and the uses of aesthetics Book Chapter
In: pp. 45-94, 2014, (Chapter in: The Work of Authorship, M.M.M. van Eechoud (ed.), Amsterdam: AUP 2014, ISBN 9789089646354.
).
@inbook{Lavik2014b,
title = {Romantic authorship in copyright law and the uses of aesthetics},
author = {Lavik, E.},
url = {http://www.ivir.nl/publicaties/download/1463.pdf},
year = {2014},
date = {2014-12-19},
pages = {45-94},
abstract = {Scholars of the arts as well as scholars of copyright law \textendash especially in the US \textendash have for decades struggled to kill off the ideology of Romantic authorship, though it is far from clear precisely what it consists of, or why and to whom it poses such danger. The situation brings to mind film historian Tom Gunning’s memorable observation in a different context that the persistent attacks ‘begin to take on something of the obsessive and possibly necrophilic pleasure of beating a dead horse’ (1998, p. xiii). This chapter is divided into two main parts. The first part critically examines the idea that the myth of Romantic authorship is deeply ingrained in copyright law and has propelled its expansion. The second part explores the broader but related issue of how insights from the humanities can usefully inform copyright scholarship. Taking as its starting point Roland Barthes’ famous essay ‘The Death of the Author’ it argues that it is extremely demanding to find common ground, for even though the disciplines overlap conceptually they are fundamentally at cross-purposes epistemologically. I maintain that we must first identify where the aims and practices of aesthetics and law actually converge, and deem it to be in the area of interpretation and evaluation, which is obviously one of the core competences of scholars of the arts, and also something that courts resort to at the infringement stage.
},
note = {Chapter in: The Work of Authorship, M.M.M. van Eechoud (ed.), Amsterdam: AUP 2014, ISBN 9789089646354.
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Scholars of the arts as well as scholars of copyright law – especially in the US – have for decades struggled to kill off the ideology of Romantic authorship, though it is far from clear precisely what it consists of, or why and to whom it poses such danger. The situation brings to mind film historian Tom Gunning’s memorable observation in a different context that the persistent attacks ‘begin to take on something of the obsessive and possibly necrophilic pleasure of beating a dead horse’ (1998, p. xiii). This chapter is divided into two main parts. The first part critically examines the idea that the myth of Romantic authorship is deeply ingrained in copyright law and has propelled its expansion. The second part explores the broader but related issue of how insights from the humanities can usefully inform copyright scholarship. Taking as its starting point Roland Barthes’ famous essay ‘The Death of the Author’ it argues that it is extremely demanding to find common ground, for even though the disciplines overlap conceptually they are fundamentally at cross-purposes epistemologically. I maintain that we must first identify where the aims and practices of aesthetics and law actually converge, and deem it to be in the area of interpretation and evaluation, which is obviously one of the core competences of scholars of the arts, and also something that courts resort to at the infringement stage.
Biron, L.
Creative work and communicative norms: Perspectives from legal philosophy Book Chapter
In: pp. 19-44, 2014, (Chapter in: The Work of Authorship, M.M.M. van Eechoud (ed.), Amsterdam: AUP 2014, ISBN 9789089646354.
).
@inbook{Biron2014,
title = {Creative work and communicative norms: Perspectives from legal philosophy},
author = {Biron, L.},
url = {http://www.ivir.nl/publicaties/download/1469.pdf},
year = {2014},
date = {2014-12-19},
pages = {19-44},
abstract = {In consideration of the application of insights from the humanities to the interpretation of core legal concepts in copyright, this chapter examines three questions: first, what is a ‘work of authorship’, and why does copyright law place such a strong emphasis on originality for determining what counts as a work? Second, can and should we modify ‘romantic’ conceptions of authorship, to take into account the various ways in which authorial practices seem to conflict with their highly individualistic and creator-centred focus? Finally, how might copyright law make sense of the various ways in which authorship is collaborative, in light of its somewhat restrictive definitions of co-authorship? This chapter will consider the contribution that existing philosophical literature on the justification of copyright might have to these questions. It begins by outlining three categories that have application to questions about authorship \textendash labour, personality and communication \textendash and explaining a deeper distinction between proprietary and non-proprietary accounts of authorship which underlies these categories. It goes on to illustrate how these differing approaches to authorship can be applied to the three questions under consideration. For reasons of space and practicality, the focus of this chapter will reflect my expertise in Anglo-American copyright theory and doctrine.
},
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In consideration of the application of insights from the humanities to the interpretation of core legal concepts in copyright, this chapter examines three questions: first, what is a ‘work of authorship’, and why does copyright law place such a strong emphasis on originality for determining what counts as a work? Second, can and should we modify ‘romantic’ conceptions of authorship, to take into account the various ways in which authorial practices seem to conflict with their highly individualistic and creator-centred focus? Finally, how might copyright law make sense of the various ways in which authorship is collaborative, in light of its somewhat restrictive definitions of co-authorship? This chapter will consider the contribution that existing philosophical literature on the justification of copyright might have to these questions. It begins by outlining three categories that have application to questions about authorship – labour, personality and communication – and explaining a deeper distinction between proprietary and non-proprietary accounts of authorship which underlies these categories. It goes on to illustrate how these differing approaches to authorship can be applied to the three questions under consideration. For reasons of space and practicality, the focus of this chapter will reflect my expertise in Anglo-American copyright theory and doctrine.
van Eechoud, M.
Voices near and far: Introduction Book Chapter
In: 2014, (Chapter in: The Work of Authorship, M.M.M. van Eechoud (ed.), Amsterdam: AUP 2014, p. 7-17. ISBN 9789089646354.).
@inbook{vanEechoud2014,
title = {Voices near and far: Introduction},
author = {van Eechoud, M.},
url = {https://www.ivir.nl/publicaties/download/Voicesnearandfar.pdf},
year = {2014},
date = {2014-12-19},
abstract = {The goal of this introduction is to ‘set the stage’ so to speak for the various explorations that follow, of notions of collaborative authorship and original works in academic thought, societal practice and as legal norms. To provide especially the readership not familiar with copyright lawmaking with a useful backdrop, what follows is a characterisation of the current state of copyright law in Europe. I shall briefly describe the role of the EU as primary actor in copyright reform. We can then sketch what the pertinent questions are on authorship and copyright subject-matter, a.k.a. original intellectual creations, and how the authors of each chapter have addressed these. The contributions in this volume all borrow from different disciplines. This introduction concludes with some observations on the many voices in academia that speak on creative practices, and on their relative proximity to copyright scholarship. Although technology and economics will continue to drive developments in intellectual property law, humanities research can (and should) have real impact on the quality of law and legal interpretation.},
note = {Chapter in: The Work of Authorship, M.M.M. van Eechoud (ed.), Amsterdam: AUP 2014, p. 7-17. ISBN 9789089646354.},
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The goal of this introduction is to ‘set the stage’ so to speak for the various explorations that follow, of notions of collaborative authorship and original works in academic thought, societal practice and as legal norms. To provide especially the readership not familiar with copyright lawmaking with a useful backdrop, what follows is a characterisation of the current state of copyright law in Europe. I shall briefly describe the role of the EU as primary actor in copyright reform. We can then sketch what the pertinent questions are on authorship and copyright subject-matter, a.k.a. original intellectual creations, and how the authors of each chapter have addressed these. The contributions in this volume all borrow from different disciplines. This introduction concludes with some observations on the many voices in academia that speak on creative practices, and on their relative proximity to copyright scholarship. Although technology and economics will continue to drive developments in intellectual property law, humanities research can (and should) have real impact on the quality of law and legal interpretation.
van Eechoud, M.
Adapting the work Book Chapter
In: pp. 145-174, 2014, (Chapter in: The Work of Authorship, M.M.M. van Eechoud (ed.), Amsterdam: AUP 2014, ISBN 9789089646354.
).
@inbook{vanEechoud2014c,
title = {Adapting the work},
author = {van Eechoud, M.},
url = {http://www.ivir.nl/publicaties/download/1461.pdf},
year = {2014},
date = {2014-12-18},
pages = {145-174},
abstract = {My focus in this piece is on the interplay between the legal concepts of work, copy and adaptation in light of the now ubiquitous ‘new’ forms or genres of works that online networks enabled. Can European copyright law accommodate the increased fluidity of some of these work genres? What avenues might be taken to attenuate the gap between legal and social practices? Is a more flexible system of limitations enough? Or do we need a wholesale rethink of the work concept? Might a more relaxed notion of copying and especially of adapting suffice? What would that mean for the kind of copyright infringement analysis courts engage in? My ambition is to explore potential avenues for reform, and in doing so take on board some insights from non-legal disciplines, notably genre and adaptations studies.
},
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My focus in this piece is on the interplay between the legal concepts of work, copy and adaptation in light of the now ubiquitous ‘new’ forms or genres of works that online networks enabled. Can European copyright law accommodate the increased fluidity of some of these work genres? What avenues might be taken to attenuate the gap between legal and social practices? Is a more flexible system of limitations enough? Or do we need a wholesale rethink of the work concept? Might a more relaxed notion of copying and especially of adapting suffice? What would that mean for the kind of copyright infringement analysis courts engage in? My ambition is to explore potential avenues for reform, and in doing so take on board some insights from non-legal disciplines, notably genre and adaptations studies.
van Gompel, S.
Creativity, autonomy and personal touch: A critical appraisal of the CJEU's originality test for copyright Book Chapter
In: pp. 95-143, 2014, (Chapter in: The Work of Authorship, M.M.M. van Eechoud (ed.), Amsterdam: AUP 2014, ISBN 9789089646354.
).
@inbook{vanGompel2014,
title = {Creativity, autonomy and personal touch: A critical appraisal of the CJEU's originality test for copyright},
author = {van Gompel, S.},
url = {http://www.ivir.nl/publicaties/download/1468.pdf},
year = {2014},
date = {2014-12-18},
pages = {95-143},
abstract = {Copyright law’s originality threshold is not a high-to-attain standard. Recent case law of the Court of Justice of the European Union (CJEU) confirms that copyright extends to subject-matter that is original in the sense that it is the ‘author’s own intellectual creation’ (Infopaq International, 2009, § 37; Bezpe\v{c}nostn\'{i} softwarov\'{a} asociace, 2010, § 46; Football Association Premier League, 2011, § 97; Painer, 2011, § 87; Football Dataco, 2012, § 37; and SAS, 2012, § 45) and that no other criteria may be applied to determine its eligibility for protection. In the Eva-Maria Painer case, the Court clarified that an intellectual creation is the author’s own ‘if it reflects the author’s personality’ and that this is the case ‘if the author was able to express his creative abilities in the production of the work by making free and creative choices’ (2011, §§ 88\textendash89). This was reiterated in the Football Dataco case, where it was once more emphasised that, for an intellectual creation to be original, the author must have stamped it with his ‘personal touch’ by making ‘free and creative choices’ during its production (2012, § 38). The meaning and substance of the CJEU’s originality criterion has not yet attracted much analytical scrutiny. In particular, the limits inherent in the CJEU’s originality standard have received little attention in legal doctrine \textendash let alone in court decisions (although that is probably not where one would expect a critical review of the test be conducted in the first place). This is remarkable, seeing that copyright regulates such a wide variety of cultural production and may restrict the use of even the most low-key, routine creations that surround us in everyday life. A more critical and out-of-the-box reading of the ‘free and creative choices’-language suggests that the CJEU’s originality standard may perhaps impose more limitations than is currently recognised in legal discourse. For one thing, authors are of course not autonomous creators who work in a vacuum. Creative processes are contingent on many external factors. Cultural productions are usually made with audiences in mind and individual creators operate within social, technical and institutional environments with all of the attendant constraints. This implies that, in reality, the autonomy of authors to make free and creative choices is often naturally restricted.
},
note = {Chapter in: The Work of Authorship, M.M.M. van Eechoud (ed.), Amsterdam: AUP 2014, ISBN 9789089646354.
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Copyright law’s originality threshold is not a high-to-attain standard. Recent case law of the Court of Justice of the European Union (CJEU) confirms that copyright extends to subject-matter that is original in the sense that it is the ‘author’s own intellectual creation’ (Infopaq International, 2009, § 37; Bezpečnostní softwarová asociace, 2010, § 46; Football Association Premier League, 2011, § 97; Painer, 2011, § 87; Football Dataco, 2012, § 37; and SAS, 2012, § 45) and that no other criteria may be applied to determine its eligibility for protection. In the Eva-Maria Painer case, the Court clarified that an intellectual creation is the author’s own ‘if it reflects the author’s personality’ and that this is the case ‘if the author was able to express his creative abilities in the production of the work by making free and creative choices’ (2011, §§ 88–89). This was reiterated in the Football Dataco case, where it was once more emphasised that, for an intellectual creation to be original, the author must have stamped it with his ‘personal touch’ by making ‘free and creative choices’ during its production (2012, § 38). The meaning and substance of the CJEU’s originality criterion has not yet attracted much analytical scrutiny. In particular, the limits inherent in the CJEU’s originality standard have received little attention in legal doctrine – let alone in court decisions (although that is probably not where one would expect a critical review of the test be conducted in the first place). This is remarkable, seeing that copyright regulates such a wide variety of cultural production and may restrict the use of even the most low-key, routine creations that surround us in everyday life. A more critical and out-of-the-box reading of the ‘free and creative choices’-language suggests that the CJEU’s originality standard may perhaps impose more limitations than is currently recognised in legal discourse. For one thing, authors are of course not autonomous creators who work in a vacuum. Creative processes are contingent on many external factors. Cultural productions are usually made with audiences in mind and individual creators operate within social, technical and institutional environments with all of the attendant constraints. This implies that, in reality, the autonomy of authors to make free and creative choices is often naturally restricted.
Cooper, E.
Reassessing the challenge of the digital: An empirical perspective on authorship and copyright Book Chapter
In: pp. 175-214, 2014, (Chapter in: The Work of Authorship, M.M.M. van Eechoud (ed.), Amsterdam: AUP 2014, ISBN 9789089646354.
).
@inbook{Cooper2014,
title = {Reassessing the challenge of the digital: An empirical perspective on authorship and copyright},
author = {Cooper, E.},
url = {http://www.ivir.nl/publicaties/download/1467.pdf},
year = {2014},
date = {2014-12-17},
pages = {175-214},
abstract = {This chapter explores these perceived challenges of the digital for copyright, through ideas about authorship that underpin so-called creative practices today. It does so through a qualitative empirical study that involved semistructured interviews with ‘artists’ and ‘poets’ who use digital technology. The interviews sought to uncover the extent to which the participation of many people was characteristic of the interviewees’ work and their views about ‘authorship’. For example, is authorship of any significance to interviewee ‘artists’ and ‘poets’? If so, who do they consider to be the author? In situations where many have contributed, how and why do they attribute authorship to some contributors while denying it to others? Finally, why is authorship important to the interviewees, if at all, and does this bear any relation to copyright’s proprietary author?
},
note = {Chapter in: The Work of Authorship, M.M.M. van Eechoud (ed.), Amsterdam: AUP 2014, ISBN 9789089646354.
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This chapter explores these perceived challenges of the digital for copyright, through ideas about authorship that underpin so-called creative practices today. It does so through a qualitative empirical study that involved semistructured interviews with ‘artists’ and ‘poets’ who use digital technology. The interviews sought to uncover the extent to which the participation of many people was characteristic of the interviewees’ work and their views about ‘authorship’. For example, is authorship of any significance to interviewee ‘artists’ and ‘poets’? If so, who do they consider to be the author? In situations where many have contributed, how and why do they attribute authorship to some contributors while denying it to others? Finally, why is authorship important to the interviewees, if at all, and does this bear any relation to copyright’s proprietary author?
Bently, L.; Biron, L.
Discontinuities between legal conceptions of authorship and social practices: What, if anything, is to be done? Book Chapter
In: pp. 237-276, 2014, (Chapter in: The Work of Authorship, M.M.M. van Eechoud (ed.), Amsterdam: AUP 2014, ISBN 9789089646354.
).
@inbook{Bently2014,
title = {Discontinuities between legal conceptions of authorship and social practices: What, if anything, is to be done?},
author = {L. Bently and L. Biron},
url = {http://www.ivir.nl/publicaties/download/1457.pdf},
year = {2014},
date = {2014-12-16},
pages = {237-276},
abstract = {Authorship is central to the operation of copyright as a regulatory tool, but copyright law’s conception of ‘authorship’ appears to be ‘out of sync’ with a wide range of social practices: either copyright makes authors-in-law out of social ‘non-authors’, or vice versa. After offering three examples (scientific credit, conceptual art and literary editing)1 this contribution considers why these differences have emerged and whether these discontinuities should be thought of as a matter of concern. It appraises a number of academic proposals as to what might be done about these discontinuities, and offers its own suggestion, namely, the deployment of a more open-textured concept of authorship, one that is able to respond flexibly to varied contexts, social understandings and practices, but limited in application to matters of attribution.
},
note = {Chapter in: The Work of Authorship, M.M.M. van Eechoud (ed.), Amsterdam: AUP 2014, ISBN 9789089646354.
},
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Authorship is central to the operation of copyright as a regulatory tool, but copyright law’s conception of ‘authorship’ appears to be ‘out of sync’ with a wide range of social practices: either copyright makes authors-in-law out of social ‘non-authors’, or vice versa. After offering three examples (scientific credit, conceptual art and literary editing)1 this contribution considers why these differences have emerged and whether these discontinuities should be thought of as a matter of concern. It appraises a number of academic proposals as to what might be done about these discontinuities, and offers its own suggestion, namely, the deployment of a more open-textured concept of authorship, one that is able to respond flexibly to varied contexts, social understandings and practices, but limited in application to matters of attribution.
Gripsrud, J.
Creativity and the sense of collective ownership in theatre and popular music Book Chapter
In: pp. 215-236, 2014, (Chapter in: The Work of Authorship, M.M.M. van Eechoud (ed.), Amsterdam: AUP 2014, ISBN 9789089646354.
).
@inbook{Gripsrud2014,
title = {Creativity and the sense of collective ownership in theatre and popular music},
author = {Gripsrud, J.},
url = {http://www.ivir.nl/publicaties/download/1458.pdf},
year = {2014},
date = {2014-12-16},
pages = {215-236},
abstract = {The purpose of the research presented here has been to investigate empirically how practising artists, in art forms where production is predominantly of a collective nature, feel and think about the nature of their contribution to the finished whole. More precisely, the idea is to explore to which extent those involved in the collective production of art have a sense or feeling of ownership vis-a-vis the outcome of the creative process, and what they think this might entail in terms of financial and other rewards. On this basis, I wish to raise some questions regarding the role of current copyright law in relation to actual artistic practices.
},
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The purpose of the research presented here has been to investigate empirically how practising artists, in art forms where production is predominantly of a collective nature, feel and think about the nature of their contribution to the finished whole. More precisely, the idea is to explore to which extent those involved in the collective production of art have a sense or feeling of ownership vis-a-vis the outcome of the creative process, and what they think this might entail in terms of financial and other rewards. On this basis, I wish to raise some questions regarding the role of current copyright law in relation to actual artistic practices.
Biron, L.; Bently, L.
The author strikes back: Mutating authorship in the expanded universe Book Chapter
In: pp. 29-51, 2014, (Chapter in: Law and Creativity in the Age of the Entertainment Frachise, Bowrey, K. & Handler, M., eds., Cambridge University Press, 2014, ISBN: 9781107039896.).
@inbook{Biron2014b,
title = {The author strikes back: Mutating authorship in the expanded universe},
author = {Biron, L. and Bently, L.},
url = {https://kar.kent.ac.uk/47535/},
year = {2014},
date = {2014-07-26},
pages = {29-51},
note = {Chapter in: Law and Creativity in the Age of the Entertainment Frachise, Bowrey, K. & Handler, M., eds., Cambridge University Press, 2014, ISBN: 9781107039896.},
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van Eechoud, M.
The Work of Authorship Book
Amsterdam University Press, 2014, ISBN: 9789089646354.
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title = {The Work of Authorship},
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year = {2014},
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van Gompel, S.; Lavik, E.
On the prospects of raising the originality requirement in copyright law: Perspectives from the Humanities Journal Article
In: Journal of the Copyright Society of the USA, 60 (3), pp. 387-443, 2013.
@article{vanGompel2013,
title = {On the prospects of raising the originality requirement in copyright law: Perspectives from the Humanities},
author = {van Gompel, S. and Lavik, E.},
url = {http://www.ivir.nl/publicaties/download/JCS_2013_3.pdf
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2347361},
year = {2013},
date = {2013-10-24},
journal = {Journal of the Copyright Society of the USA},
volume = {60},
number = {3},
pages = {387-443},
abstract = {In 1903, in \emph{Bleistein v Donaldson Lithographing}, Justice Holmes famously concluded that judges are ill-suited to make merit judgments when determining the eligibility for protection of works. Subsequent courts and commentators have generally followed his caution. Yet, no one has thought through how the copyright system would work were Justice Holmes not heeded. What if courts were called upon to determine the aesthetic merit of a work? How would they go about it? And would they be able to separate the gold from the dross by drawing upon an aesthetic evaluation of such kind?
},
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In 1903, in Bleistein v Donaldson Lithographing, Justice Holmes famously concluded that judges are ill-suited to make merit judgments when determining the eligibility for protection of works. Subsequent courts and commentators have generally followed his caution. Yet, no one has thought through how the copyright system would work were Justice Holmes not heeded. What if courts were called upon to determine the aesthetic merit of a work? How would they go about it? And would they be able to separate the gold from the dross by drawing upon an aesthetic evaluation of such kind?
van Gompel, S.; Lavik, E.
Quality, merit, aesthetics and purpose: An inquiry into EU copyright law's eschewal of other criteria than originality Journal Article
In: RIDA, (236), pp. 100-295, 2013.
@article{vanGompel2013b,
title = {Quality, merit, aesthetics and purpose: An inquiry into EU copyright law's eschewal of other criteria than originality},
author = {van Gompel, S. and Lavik, E.},
url = {http://www.ivir.nl/publicaties/download/RIDA_236.pdf},
year = {2013},
date = {2013-09-03},
journal = {RIDA},
number = {236},
pages = {100-295},
abstract = {This article examines the rule that no other criteria than originality shall be applied to determine the eligibility for protection of works, as contained in a few EU Directives on copyright (i.e. the Computer Programs Directive, the Term Directive and the Database Directive). While aimed to preclude criteria such as quality, merit, aesthetics and purpose from the subject-matter definition of copyright, the legal significance and practical implications of this rule is not entirely clear. Analysing the legislative history of the ‘no other criteria’-clause in EU copyright law and its equivalent in the national laws of four EU Member States (i.e. France, Germany, the Netherlands and the United Kingdom), the article observes that the objective of the rule is to prevent the grant or refusal of copyright by the courts from being dependent on subjective evaluative judgments about a work’s intrinsic value or worth. Judges are not supposed to assess whether a work aesthetically or commercially stands out, but only need to determine whether it meets the originality threshold. In practice, however, while the courts practically always refrain from using the lack of success, merit or quality as an argument to \textit{withhold} copyright from a creation, they do not necessarily ignore a work’s success, merit or quality when \textit{ granting} protection to it. Moreover, the article finds that genres and categories of works are not always definable on formal properties alone and that judges sometimes cannot escape making qualitative or aesthetic considerations when determining the eligibility for protection of low original works. The article concludes that, since judges sometimes cannot make a clear distinction between protectable and non-protectable subject-matter on the basis of the originality criterion alone, copyright law’s concept of originality would fail to adequately serve its discriminatory function, should the ‘no other criteria’-clause always be taken literally. },
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This article examines the rule that no other criteria than originality shall be applied to determine the eligibility for protection of works, as contained in a few EU Directives on copyright (i.e. the Computer Programs Directive, the Term Directive and the Database Directive). While aimed to preclude criteria such as quality, merit, aesthetics and purpose from the subject-matter definition of copyright, the legal significance and practical implications of this rule is not entirely clear. Analysing the legislative history of the ‘no other criteria’-clause in EU copyright law and its equivalent in the national laws of four EU Member States (i.e. France, Germany, the Netherlands and the United Kingdom), the article observes that the objective of the rule is to prevent the grant or refusal of copyright by the courts from being dependent on subjective evaluative judgments about a work’s intrinsic value or worth. Judges are not supposed to assess whether a work aesthetically or commercially stands out, but only need to determine whether it meets the originality threshold. In practice, however, while the courts practically always refrain from using the lack of success, merit or quality as an argument to withhold copyright from a creation, they do not necessarily ignore a work’s success, merit or quality when granting protection to it. Moreover, the article finds that genres and categories of works are not always definable on formal properties alone and that judges sometimes cannot escape making qualitative or aesthetic considerations when determining the eligibility for protection of low original works. </span> <span lang="EN-GB">The article concludes that, since judges sometimes cannot make a clear distinction between protectable and non-protectable subject-matter on the basis of the originality criterion alone, copyright law’s concept of originality would fail to adequately serve its discriminatory function, should the ‘no other criteria’-clause always be taken literally.
van Gompel, S. J.
The Orphan Works Chimera and How to Defeat It: A View From Across the Atlantic Journal Article
In: Berkeley Technology Law Journal, (3), pp. 1347-1378., 2013.
@article{,
title = {The Orphan Works Chimera and How to Defeat It: A View From Across the Atlantic},
author = {S.J. van Gompel},
url = {http://www.ivir.nl/publicaties/download/BTLJ_2013_3.pdf},
year = {2013},
date = {2013-03-26},
journal = {Berkeley Technology Law Journal},
number = {3},
pages = {1347-1378.},
note = {
This article contends that the orphan works problem (the problem of unknown or untraceable right owners) is a generic problem. It is not specific to a certain form of use, but has implications across the copyright spectrum. Yet, it manifests itself in different ways, depending on the type of use that is made of these works. The article consists of three parts. Employing the metaphor of the Chimera, a three-headed she-monster in ancient Greek mythology, Part I introduces the different ways in which the problem manifests itself and describes the legal uncertainty that the different categories of users of orphan works experience. Next, Part II argues that there is not one best approach to address the orphan works problem. Rather, it suggests adopting a multifaceted approach that would provide adequate relief for the different categories of users of orphan works. Part III concludes.
},
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van Eechoud, M.
Government Works Book Chapter
In: pp. 141-175, 2012, ISBN: 9789086920372, (Chapter in: A century of Dutch copyright law: auteurswet 1912-2012, Hugenholtz, P.B., Quaedvlieg, A. & Visser, D., eds., 2012.).
@inbook{vanEechoud2012,
title = {Government Works},
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year = {2012},
date = {2012-10-23},
pages = {141-175},
note = {Chapter in: A century of Dutch copyright law: auteurswet 1912-2012, Hugenholtz, P.B., Quaedvlieg, A. & Visser, D., eds., 2012.},
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Biron, L.
Public reason, communication and intellectual property Book Chapter
In: pp. 225-260, 2012, (Chapter in: New Frontiers in the Philosophy of Intellectual Property, Lever, A. ed., Cambridge University Press, 2012.).
@inbook{Biron2012,
title = {Public reason, communication and intellectual property},
author = {Biron, L.},
url = {https://www.cambridge.org/core/books/new-frontiers-in-the-philosophy-of-intellectual-property/public-reason-communication-and-intellectual-property/BECC4D70E9791A40A2A82B9B9FBBEEB9},
year = {2012},
date = {2012-08-02},
pages = {225-260},
note = {Chapter in: New Frontiers in the Philosophy of Intellectual Property, Lever, A. ed., Cambridge University Press, 2012.},
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van Eechoud, M. M. M.
Along the Road to Uniformity - Diverse Readings of the Court of Justice Judgments on Copyright Work Journal Article
In: JIPITEC, (1), pp. 60-80, 2012.
@article{,
title = {Along the Road to Uniformity - Diverse Readings of the Court of Justice Judgments on Copyright Work},
author = {M.M.M. van Eechoud},
url = {http://www.ivir.nl/publicaties/download/JIPITEC_2012_1.pdf},
year = {2012},
date = {2012-06-28},
journal = {JIPITEC},
number = {1},
pages = {60-80},
note = {For a long time, EU law's impact on the meaning of copyright work seemed limited to software and databases. But recent judgments of the CJEU (Infopaq, BSA, Football Association [Murphy], Painer) suggest we have entered an era of harmonization of copyright subject matter after decades of focus on the scope of exclusive rights and their duration. Unlike before, however, it is the Court and not the legislator that takes centre stage in shaping pivotal concepts. This article reviews the different readings and criticisms evoked by the recent case law on copyright works in legal doctrine across the EU. It puts them in the wider perspective of the on-going-development towards uniform law and the role of the preliminary reference procedure in that process.},
keywords = {},
pubstate = {published},
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van Gompel, S. J.
Het richtlijnvoorstel verweesde werken: Een kritische beschouwing Journal Article
In: AMI, (6), pp. 205-218, 2012.
@article{,
title = {Het richtlijnvoorstel verweesde werken: Een kritische beschouwing},
author = {S.J. van Gompel},
url = {http://www.ivir.nl/publicaties/download/AMI_6_2011.pdf},
year = {2012},
date = {2012-01-13},
journal = {AMI},
number = {6},
pages = {205-218},
abstract = {
Op 24 mei 2011 heeft de Europese Commissie een voorstel ingediend voor een richtlijn inzake bepaalde toegestane gebruikswijzen van verweesde werken. Hiermee beoogt de Commissie rechtszekerheid te creëren met betrekking tot het digitaliseren en online toegankelijk maken van verweesde werken door bepaalde - specifiek aangewezen - culturele organisaties. Het voorstel voorziet in een aanpak die is gebaseerd op een zorgvuldige zoektocht naar rechthebbenden en op de wederzijdse erkenning van nationale oplossingen voor verweesde werken. Dit artikel bespreekt de achtergrond en inhoud van het richtlijnvoorstel. Geconcludeerd wordt dat het zowel qua reikwijdte als qua inhoud tekort schiet. Daarnaast laat het voorstel nog veel vragen onbeantwoord.
},
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Op 24 mei 2011 heeft de Europese Commissie een voorstel ingediend voor een richtlijn inzake bepaalde toegestane gebruikswijzen van verweesde werken. Hiermee beoogt de Commissie rechtszekerheid te creëren met betrekking tot het digitaliseren en online toegankelijk maken van verweesde werken door bepaalde - specifiek aangewezen - culturele organisaties. Het voorstel voorziet in een aanpak die is gebaseerd op een zorgvuldige zoektocht naar rechthebbenden en op de wederzijdse erkenning van nationale oplossingen voor verweesde werken. Dit artikel bespreekt de achtergrond en inhoud van het richtlijnvoorstel. Geconcludeerd wordt dat het zowel qua reikwijdte als qua inhoud tekort schiet. Daarnaast laat het voorstel nog veel vragen onbeantwoord.
van Eechoud, M.; van Gompel, S.; Guibault, L.; van der Sloot, B.; Hugenholtz, P.
Report of the Netherlands for ALAI 2011 Study Days (Dublin) Technical Report
2011.
@techreport{,
title = {Report of the Netherlands for ALAI 2011 Study Days (Dublin)},
author = {van Eechoud, M. and van Gompel, S. and Guibault, L. and van der Sloot, B. and Hugenholtz, P.},
url = {https://www.ivir.nl/publicaties/download/ALAI_2011_Dublin.pdf},
year = {2011},
date = {2011-05-19},
keywords = {},
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tppubtype = {techreport}
}
