1709 Blog: for all the copyright community

Thursday, 27 December 2012

The challenge of the new

Copyright and the Challenge of the New, edited by: Brad Sherman and Leanne Wiseman, is the 25th and latest in the line of titles in the Wolters Kluwer Information Law Series, which has both led and reflected thought in that field for many a long year under the inspired guidance of Professor Bernt Hugenholtz.  This collection of essays, despite its title, is as much about the reassuring comfort of the old as the challenge of the new: in retrospect one cannot but admire the versatility of copyright in adapting itself to so many new technologies by simultaneously marketing itself as the friend of the creator, the investor and even the user.  It is only really in the past 20 years or so that the increasing transparency of a world driven by internet access and the social media has caused an increasingly knowledgeable world to recognise both the spin and the reality that lies behind it -- for better or worse.

But what do the publishers say about this compilation?  According to the book's web page:
"Copyright is not, as is often thought, something that is periodically ‘extended’ to cover a new field or medium; rather, copyright redefines itself whenever its efficacy is challenged. While many factors have contributed to this process, the most consistent has been the challenges created by new technologies. The contributing authors build upon this insight to show that copyright law is, and has always been, a creature of technology. Each chapter focuses on a specific technology or group of technologies – photography, telegraphy, the phonogram, radio, film, the photocopier, the tape player, television, and computer programs – emphasizing the changes that each technology instigated and the challenges and opportunities it created. Perhaps the most profound insight of this extraordinary book is the authors’ claim – ably supported in a series of intriguing chapters – that the way the law responds and reacts to new technologies is always mediated by the political, social, economic, and cultural environment in which the interaction occurs. For example, these chapters describe and explain how:
  • statutory schemes of remuneration arose from failures to effectively police new forms of piracy; 
  • persistent litigation and lobbying by copyright owners forces legislatures and courts to devise new laws; 
  • content (e.g., sporting events) generates new rules of access to broadcasts; and ‘fair copying’ (e.g., by libraries) is the necessary exception that proves the rule.
As well as providing insight into the ways that copyright law interacted with old technologies when they were new, the book also offers important insights into problems and issues currently confronting copyright law and policy such as the appropriate scope of copyright and the relation between copyright and the public interest. With the broad perspectives opened by these essays, academics, practitioners and policymakers in the field will find themselves well equipped to deal with the problems that will inevitably be created by technologies in the future".
Contributors to this collection include Lionel Bently, Graeme Austin and Pamela Samuelson (who rightly describes the use made of copyright in the clumsily inappropriate field of computer program protection as a genuine success story). Kathy Bowrey's chapter on The World Daguerreotyped was the one that most appealed to this blogger, who is currently going through a bit of a photographic phase right now, but he has not yet had the courage to face up to Leanne Wiseman's contribution on photocopying since he still bears the scars of a far too detailed scholarly lecture on that topic which he had to attend some years ago, delivered in a droning monotone by a professor who read from his text and was impervious to coffee breaks.

Bibliographic data: hardback, xii + 273 pages. ISBN 9789041136695. Price:US$ 135 .Web page here.

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