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date: 22 August 2017

Copyright

Summary and Keywords

Copyright is a bundle of rights granted to the creators of literary, artistic, and scientific works such as books, music, films, or computer programs. Copyright, as one of the most controversial areas of communication law and policy, has always been the subject of political contention; however, debates surrounding the subject have reached new levels of controversy since the 1990s as a result of the new formats of creative works made possible by digital media, and as a result of the new practices of authorship, creativity, consumption, collaboration, and sharing that have arisen in light of networking and social media. Technological change has not been the only driving force of change; social and political change, including changing concepts of authorship, the recognition of the rights of women and indigenous peoples, and the changing structures of international relations and international civil society, have also been reflected in copyright law. Copyright policymaking has become an increasingly internationalized affair. Forum-shifting has contributed to the proliferation of regional and international copyright policymaking forums under the rubric of stand-alone intellectual property institutions such as the World Intellectual Property Organization (WIPO), as well as under institutions dedicated more broadly to international trade negotiations.

Communication scholars and others have contributed extensively to the field of copyright and intellectual property law. Communication scholars have made significant contributions in examining the cultural significance, political economy, history, and rhetoric of copyright, drawing on diverse fields that include cultural studies and critical political economy. Communications scholars’ influence in the field of copyright scholarship has been significant.

Keywords: copyright, intellectual property, authorship, law, communication law and policy

Introduction

Copyright is a bundle of rights granted to the creators of literary, artistic, and scientific works such as books, music, films, or computer programs. Copyright is one type of intellectual property law. Intellectual property law encompasses not only copyright law, but also the law of neighboring rights (which grants rights to performers, broadcasters, and makers of sound recordings in performances and recordings), patent law (granting rights in inventions), trademark law (granting rights in words or symbols associated with the sale of goods or services), and other forms of intellectual property (Bently & Sherman, 2014).

The rights granted under copyright law fall broadly into two categories: moral rights and economic rights. Moral rights encompass the right of attribution (the right to claim authorship of a copyright work) and the right to the work’s integrity (against distortion or mutilation) (Bently & Sherman, 2014, pp. 272–291). Economic rights—those rights that are generally licensed or sold—include, for example, the right to produce or reproduce the copyright work, to perform the work in public, to publish the work, to translate the work into another language, and to authorize these acts (Bently & Sherman, 2014).

While copyright can be a complicated realm and, at times, a minefield for communications and media practitioners, a number of scholars have assembled useful and practical guides for students, those working in communications industries, and those working in artistic practice (Bielstein, 2010; Jaszi & Aufderheide, 2008; Trosow & Murray, 2013).

Copyright can be seen as having been influenced historically by two competing legal traditions: the Anglo-American copyright tradition and the French tradition of droit d’auteur. While the copyright tradition emphasizes economic rights, moral rights were originally associated with droit d’auteur. The Anglo-American copyright tradition arose in England, which, in the midst of the Industrial Revolution, took a pragmatic view of copyright as a product of legislation rather than a natural right. This legislation was seen as balancing competing interests, including those of creators, publishers, and the public. Under the tradition of droit d’auteur, on the other hand, more emphasis was placed on the protection of creators than on the interests of users or the public, with creators’ or authors’ rights being viewed as a natural right to the fruits of their labor, integral to their personhood. Droit d’auteur recognized creators as a group seen as contributing uniquely to the advancement of civilization (Tawfik, 2003, p. 64). Despite the two systems’ identifiable differences, they have, to a certain extent, been combined in the laws of many countries through processes of international harmonization (Bently & Sherman, 2014; Tawfik, 2003, p. 81).

Copyright is connected to the fundamental rights of property and free expression. Two long-dominant ideologies of copyright are rooted in Lockean and Hegelian philosophies of property and are used to argue respectively that the recognition of property rights in creative work is justified as a recognition of the labor exerted by the creators of those works, or in recognition of creative work as an expression of the personality and personhood of its author (Drahos, 1996). The utilitarian ideology of copyright, more influential in the Anglo-American copyright tradition, views the granting of property rights in creative works as justified to the extent that such rights serve the public good by encouraging creative production and the publication of copyright works (Ochoa & Rose, 2001).

Copyright is connected not only to the right of property, but also to the right of free expression. It plays an important role in creative, popular, political, critical, and educational expression and is, as such, connected to “the heart of a democratic civil society” (Netanel, 1996; see also Netanel, 2000). While the dominant view is that copyright serves as a vehicle for free expression, encouraging the production of copyright works, many critics argue that copyright often stifles free expression, either by inhibiting or prohibiting follow-on works, or through measures such as website blocking and content filtering, imposed to prevent copyright infringement (Samuelson, 2002; Shaheed, 2014, p. 11). This is a key dilemma for copyright law (Netanel, 2000).

International human rights agreements, including the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Economic, Social, and Cultural Rights, recognize both the rights of authors and the rights of all people “to enjoy the arts and to share in scientific advancement and its benefits.” (UDHR, art. 27; International Covenant on Economic, Social, and Cultural Rights arts. 15(1)(b), (c); Helfer, 2006). Human rights analyses and UN bodies are increasingly used as a basis for critique of the existing copyright system (Helfer, 2006; Shaheed, 2014). This is true on both national and international levels; WIPO, a United Nations agency, has been strongly criticized by proponents of a development agenda for the organization, who argue that it has failed to live up to its mandate as a United Nations agency. As Christopher May notes, “[a]t the centre of the Development Agenda is a critique of the WIPO that suggests it represents a narrowly focused set of political economic interests that seek to expand the realm of commodified knowledge and information for their own commercial advantage” (2006, p. 4). Farida Shaheed, UN Special Rapporteur in the field of Cultural Rights, stressed “the need to guard against promoting the privatization of knowledge to an extent that deprives individuals of opportunities to take part in cultural life and to enjoy the fruits of scientific progress, which would also impoverish society as whole” (2012, p. 79).

Some have critiqued the dominant justifications of copyright. Richard Stallman (2006), the founder of the Free Software movement, objects to the term “intellectual property,” arguing that copyright, trademark, and patents are not, in fact, forms of “property.” Whereas private property is often justified as protecting society from the “tragedy of the commons,” preventing the destruction of common land due to overuse by dividing land into private property, Stallman notes that intellectual property, unlike physical property, is non-rivalrous; many people can use it without destroying the commons. Second, it is non-exclusive in the sense that it can’t be locked up to prevent others from using it. Third, the term “intellectual property” tends to group together unlike things; whereas the purpose of copyright law is to encourage the creation of literary and artistic works, the purpose of patent law is to ensure that information about inventions is shared publicly, at the price of a short monopoly to the inventor. The purpose of trademark law is consumer protection: to allow buyers to identify the origin of products and services and to know what they’re buying. The terms “property” and “intellectual property,” Stallman argues, are thus entirely inappropriate.

Others, noting international inequalities in both the production of, and access to, copyright works, have critiqued the dominant justifications of copyright as a form of (false) ideology. Peter Drahos (1996), in A Philosophy of Intellectual Property, outlines a Marxian critique of intellectual property, which views intellectual property, like other forms of property, as an “ideological fairy tale” designed to hide the systemic exploitation and inequality that it underwrites. Alan Story (2003), similarly, describes the international copyright system as “an ideology exported to the South”—a set of rules so familiar that they seem natural, so natural that their justice is rarely questioned. International copyright, here, is a system of property constructed to maintain and extend the power of the ruling class internationally—to benefit copyright producers located largely in “developed” rather than developing countries (Story, 2003).

While copyright, as one of the most controversial areas of communication law and policy, has always been the subject of political contention, debates surrounding the subject have reached new levels of contention since the 1990s as a result of the new formats of creative works made possible by digital media, and as a result of the new practices of authorship, creativity, consumption, collaboration, and sharing that have arisen in light of networking and social media (Elkin-Koren, 2010; Litman, 2001).

Copyright policymaking has become an increasingly internationalized affair. Forum-shifting has contributed to the proliferation of regional and international copyright policymaking forums under the rubric of stand-alone intellectual property institutions such as the WIPO, as well as under institutions dedicated more broadly to international trade negotiations such as the World Trade Organization (WTO). At a number of these institutions, international copyright norm-setting has become increasingly acrimonious, polarized, and dysfunctional, with clashes over copyright norms, and over organizational direction, left unresolved for years or decades (Helfer, 2006, p. 973). At the same time, new international copyright norms emanate from an increasing array of international institutions at an increasing frequency, including not only the WIPO and WTO, the two central international norm-setting institutions, but also through an increasing array of plurilateral trade agreements (Sell, 2009).

Much of the contention, internationally, sees “developed” countries pitted against “developing” countries—the latter conceptualized as net “users” rather than “producers” of works in the international copyright system. However, developing countries have, since the 1990s, taken on an increasingly prominent role and have equally become the focus of scholarly attention. While numerous histories of copyright (Litman, 2001; Patterson, 1968) and international copyright (Barnes, 1974; Bently & Sherman, 2001; Bogsch, 1992; Johns, 2010; Ladas, 1938; Ricketson & Ginsburg, 2006; Rose, 1993; Sell & May, 2001; Seville, 2006; Stewart & Sandison, 1989) focus on France, the United Kingdom, Germany, and the United States, a growing body of literature focuses on more peripheral countries (Atkinson, 2007; Bannerman, 2013; Bently, 2007; Birnhack, 2012; Deere, 2008; Han, 2014; Wirtén, 2008).

Critiques of Copyright

Since the 1990s, a number of critiques of the dominant model of copyright have been raised. Some have raised critiques of the law itself, suggesting specific legal reforms or policy approaches, while others have criticized the copyright system as part of a broader critique of economic, cultural, rhetorical, or institutional structures.

Critiques of Copyright Law Itself

Technological change and the rise of digitization and the Internet brought a wave of copyright reforms beginning in the 1990s aimed at responding to digital and networked sharing of copyright works (Litman, 2001). Critiques have been leveled against many of these reforms, including critiques of copyright term extension, of the inadequacies of provisions for user rights, and of digital lock provisions (Lessig, 2004). Social and political change, including changing concepts of authorship, the recognition of the rights of women and indigenous peoples, and the changing structures of international relations and international civil society, have also begun to be reflected, to a much lesser extent, in copyright law in some countries.

Term Extension

One of the most controversial critiques of the copyright reforms that took place beginning in the 1990s was the extension of the term of copyright. Popularly called the “Mickey Mouse term extension,” in 1998 the United States extended the term of copyright from 50 years to 70 years beyond the death of the author. This term extension, the subject of a failed Supreme Court challenge in Eldred v./ Ashcroft, earned its nickname because it responded to the imminent expiry of copyright in its Disney Mickey Mouse products. Many countries passed similar term extensions.

User Rights

Copyright law in some countries has been critiqued for inadequate fair use and fair dealing provisions. American fair use provisions, which permit the fair use of works or portions of works in criticism, parody, news reporting, research, teaching, or scholarship, find their counterparts in what some other countries term “fair dealing” (D’Agostino, 2008). Such “user rights” in copyright law are not standardized internationally, as are the rights granted to copyright holders (Consumers International, 2006). This has inspired several international efforts, in recent years, to establish minimum international standards for user rights. Such efforts were successful in the establishment, in 2013, of the WIPO’s Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, aimed at permitting the reproduction, distribution, and making available of published works in accessible formats by requiring member states to put in place provisions permitting the exchange of accessible format works across borders by organizations that serve visually impaired people. As the first international copyright treaty put in place primarily to serve users rather than copyright holders, its founding in 2013 was historic (Bannerman, 2016, pp. 178–180).

Digital Locks and Copyright by Contract

While copyright law has undergone revision in recent decades, private mechanisms of regulation have taken up increasing roles in copyright norm-setting and enforcement, with important consequences for the democratic oversight of regulation. Lawrence Lessig (2006) and others have highlighted the increasing role played by technologies and software in regulating what users can and cannot do with digital copyright works. Margaret Jane Radin (2004) has also highlighted the increasing role of private contracts, shrink-wrap, and click-wrap agreements in rewriting the terms of use of copyright works in favor of copyright owners, effectively supplanting copyright law and many of the rights granted to users under that law.

Social Production

Some critics have argued that current copyright law is out of step with new modes of social production. Elkin-Koren (2010), for example, suggests that, in a world of social media and social production, users create for non-commercial reasons and thus do not need the incentive of copyright protection to create. Users, she argues, create through different social practices for which copyright is inappropriate and generate different kinds of works subject to complex forms of authorship that copyright does not contemplate or encompass—indeed, that copyright inhibits (Elkin-Koren, 2010). Benkler (2006) has also highlighted the forms of commons-based peer production that take place with little regard to copyright ownership.

Feminist Critiques

Copyright law has been the subject of feminist critique. Ann Bartow (2006), for example, has argued that copyright, while appearing to apply in an ungendered fashion, actually has significant gendered effects, embodying a male vision of creativity and commerce. She argues that copyright tends to recognize, and tends to be used to enforce rights in, highly successful commercial works, a field in which men, she notes, are dominant. Copyright offers less to producers of non-commercial works and to the sorts of crafts and domestic creativity that may be produced by women. Women, she argues, are affected by copyright mainly as infringers and users of copyright works, rather than as copyright holders (Bartow, 2006). Others have argued that copyright is not aesthetically agnostic but, rather, that its conceptions of aesthetic value are gendered (Craig, 2015) and that women are using new digital technologies to subvert male-dominated mass media (Chaloner, 2010).

Postcolonial Critiques

Copyright law, historically, has taken very little account of traditional knowledge and cultural expressions, much of which is considered to be part of the public domain. This has led to the appropriation of traditional knowledge as the “raw material” of Western creativity (Sunder, 2007). Profits flow to the Western intellectual property holders who appropriate traditional knowledge and cultural expressions as a part of their own works, while the originating communities are left unrecognized and uncompensated. In some countries, laws have been put in place to recognize rights in traditional knowledge (Drahos, 2014; Rimmer, 2016). In contrast to the speed of copyright internationalization, efforts to internationalize the recognition of rights in traditional knowledge have been underway for decades with few concrete results (Bannerman, 2015). In part for this reason, the international copyright system has been subject to extensive postcolonial criticism (Bannerman, 2015; Okediji, 2003; Rahmatian, 2009; Sherman, 1994; Sunder, 2007; Thomas & Nyamnjoh, 2007).

Structural Critiques

While the provisions of copyright law themselves have been subject to the various critiques just discussed, copyright law has also been subject to a set of broader critiques of economic, cultural, and institutional structures.

Critiques of Copyright as a Part of Broader Critiques of Economic Structures

Some scholars have focused their critiques of copyright law as a part of a broader critique of the political economy of information capitalism. Communication scholar Ronald Bettig, in Copyrighting Culture: The Political Economy of Intellectual Property (1996), critiqued copyright as a tool of global entertainment multinationals, while Joost Smiers (with van Schijndel) argues in Imagine There’s No Copyright (and No Cultural Conglomerates Too) (2009) that copyright, as a tool of multinational entertainment corporations used to lock up cultural monopolies, should be largely abolished.

Some scholars have critiqued copyright and intellectual property rights’ commodification of cultural works (Cammaerts, 2011; Perelman, 2003; Smiers & van Schijndel, 2009). This critique of commodified culture has been developed into a vision of a non-commodified realm of culture, or commons-based peer production (Benkler, 2006).

Other scholars have focused on the ways in which copyright laws facilitate the exploitation of cultural laborers (Fuchs, 2011; Stahl, 2011), or employees more generally (Fisk, 2003). Here, copyright law is seen as part of a broader system of exploitation of labor by capital. On the other hand, some scholars have focused on the ways in which technologies can be used to resist information enclosure (Costanza-Chock, 2009; Dyer-Witheford, 1999; Lee, 2009; Schweidler & Costanza-Chock, 2009; Wark, 2006; Söderberg, 2002).

Copyright has also been criticized as an element of inequitable international economic structures. Alongside Alan Story’s (2003) critique of international copyright, mentioned above, economist Ha-Joon Chang, in Kicking Away the Ladder (2006), argues that “developed” countries like the United States, the United Kingdom, Germany, and France have followed a path of development that was facilitated by low levels of intellectual property protection, allowing the import and emulation of foreign works and technology. However, having achieved “development,” they have moved to “kick away the ladder” by insisting that developing countries today adopt high levels of intellectual property protection, thus preventing those countries from taking the same path they themselves followed. Joe Karaganis’s Media Piracy in Emerging Economies (2011) critiques the highly inequitable levels of access that developing countries have to Western cultural products as a result, largely, of international copyright law, while Armstrong et al.’s Access to Knowledge in Africa (2010) emphasizes the inequitable levels of access to educational materials in particular in many African countries and the potential of copyright exceptions to solve some of these problems. At the same time, a number of scholars have asked whether developing or emerging countries might be beginning to play a progressive role in international systems of copyright and intellectual property (Bannerman, 2015; Dreyfuss, 2009; Reichman, 2009; Yu, 2008, 2012a, 2012b).

Since the 1980s, copyright lawmaking has become increasingly integrated into the international trade system. Debates about intellectual property and free trade stretch back to the 19th century (Shale, 1878). However, since the 1980s, the United States has adopted a trade-based approach to intellectual property, pushing for the inclusion of intellectual property provisions in trade agreements, beginning (unsuccessfully) with the Tokyo round of General Agreement on Tariff s and Trade (GATT) talks in 1979. In 1986, countries agreed to include intellectual property in the GATT talks, and by the early 1990s, the main norm-setting efforts in the area of intellectual property were taking place under GATT. These led ultimately to the establishment of the World Trade Organization and its 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

Intellectual property has been an important subject of trade negotiations since, in bilateral, plurilateral, and multinational fora. It is argued that requiring strong intellectual property protections around the world facilitates confidence, investment, and thus trade (Maskus & Penubarti, 1995). Others have disputed, first, the connection between intellectual property and trade and, second, the contributions of strong intellectual property protections to investment and growth, arguing that the TRIPs Agreement works not in the best interests of poor countries but, rather, “operates to define and extend capitalist social relations of production on a global scale” (Richards, 2004), creating an international system of information feudalism (Drahos & Braithwaite, 2002; see also Correa, 2000; Drahos, 2003; Matthews, 2004; Sell, 1998; Story, Darch, & Halbert, 2006).

Critiques of Copyright as a Part of Broader Cultural Critiques

The line between economic and cultural critiques of copyright is no doubt blurred, but numerous scholars, often drawing on the paradigm of cultural studies, have contributed studies of copyright that focus on the cultural phenomena and cultural effects of copyright law. Copyright and its effects reach far beyond the legal system and are rooted in cultural paradigms that are as important and interesting to examine as the law itself.

There is a rich intersection between copyright and culture, since in many ways copyright is productive of culture in ways that go beyond simple encouragement. The proprietization of culture “recodes existing significations and patterns of information flow” and actualizes “nascent modes of thought, conduct, affect, expression, and embodiment” (Striphas & McLeod, 2006, p. 122). It empowers certain forms of cultural production while making others, such as remix culture (Lessig, 2008), difficult or impossible. It changes our relationship with culture and cultural work.

Copyright is also based in conceptualizations of authorship, ownership, originality, piracy, and the public domain that are deeply cultural. Copyright, many scholars have noted, is based in Western conceptualizations of the Romantic author (Barthes, 1977; Foucault, 1977; Rose, 1993; Woodmansee & Jaszi, 1994), of Enlightenment ideals of originality (Sherman, 1994), and in historically and culturally constructed Western conceptualizations of ownership and protection of property (Coombe & Herman, 2004; Murray, 2004; Silbey, 2014), piracy (Johns, 2010), and the public domain (Wirtén, 2008). Each of these has roots not only in the West and Enlightenment traditions, but also in cultural imperialism; the concepts in which copyright is based fail to register indigenous forms of authorship and ownership, relegating much work to the public domain, a realm free for plunder by the West (Sunder, 2007; Wirtén, 2008).

Copyright law is not the only system of governing cultural performance and (re)production; informal cultural systems also exist that implement, interpret, mitigate, provide alternatives to, and challenge copyright law, and scholars warn of the dangers of reifying the law itself (Striphas & McLeod, 2006, p. 128). In some realms of cultural practice, copyright laws are simply ignored (Meese, 2014), and in some realms, such as fan fiction, textual poaching is celebrated—not necessarily by copyright owners (Schwabach, 2011; Striphas & McLeod, 2006, p. 134). Creative Commons licenses reformulate both copyright defaults and the norms of cultural circulation. Parody, pranks, and civil disobedience have been used to ridicule and challenge copyright laws (Sanjek, 2006).

Critiques of Copyright Institutions

Several studies and critiques of the copyright system have focused on its institutional structures. Numerous institutions make up the copyright system at national and international levels, with institutions of both formal and informal governance linked to form, as Drahos (2004) terms it, a “nodally coordinated” system of governance. Various institutions, including not only state governments, but also corporations like Pfizer and Microsoft; private sector coalitions, such as the Intellectual Property Committee (IPC) in the 1990s or the International Intellectual Property Alliance (IIPA); and international organizations such as WIPO and the WTO, influence intellectual property governance in such a way that they operate as nodes of governance within this system (Drahos, 2004).

Private sector alliances have wielded tremendous agenda-setting and policy influence in the international intellectual property system (Sell, 1998). Susan Sell (2003) describes the role that the IPC played in establishing the TRIPs Agreement by using “its power to identify and define a trade problem, devise a solution, and reduce it to a concrete proposal that could be sold to governments” (p. 2).

Institutional structures of international organizations such as the WTO or WIPO also play an important role (Bannerman, 2015; May, 2006). WIPO, in confronting the digital agenda promoted by the IPC in the 1990s, did so in a more balanced fashion; here, the advocates of high-protectionist agenda “faced vocal and powerful opposition by skilled articulators of an alternative position” in companies like Sun, Netscape, and various nongovernmental organizations (NGOs) (Sell, 2003). WIPO has also adopted a formal development agenda, viewed as progressive by some in its acknowledgment that intellectual property entails costs as well as benefits to developing countries, which must be balanced (Argentina & Brazil, 2004), but critiqued by others as a tool of the furtherance of intellectual property owners’ agendas (Bannerman, 2015). While WIPO may be both more transparent and more open to the voices of developing countries and NGOs than the WTO, it has also been subject to significant critique for the influence wielded by intellectual property owners at the organization (May, 2006), the lack of transparency and consensus within its committee structure (Gross, 2007), its failure to live up to its mandate as a UN agency (Argentina & Brazil, 2004; May, 2006), its failure to recognize indigenous peoples (Bannerman, 2015), and its historical roots in imperial copyright (Bannerman, 2015).

The institutional setups of domestic intellectual property institutions like the United States Patent and Trademark Office (USPTO) and its counterpart national intellectual property offices in other countries (Deere, 2008; Doern & Sharaput, 2000; Drahos, 2008) also play important roles in copyright law.

Discussion of the Literature

Communication scholars and other scholars of culture, media, and journalism have, alongside legal scholars, contributed extensively to the field of copyright and intellectual property law. These scholars have made significant contributions aimed at advising media scholars and practitioners on copyright law, but also in examining the cultural significance and political economy of copyright, drawing on diverse fields that include cultural studies and critical political economy.

Communication and media scholars have developed significant practical advice about copyright and user rights aimed at communications and media practitioners. This was a key focus in earlier scholarship on copyright within the field of communications, which often focused on practical discussions of copyright law aimed at assisting educators’ and journalists’ understanding of copyright law (Auer, 1981; Fishman, 1976; Francois, 1980; Middleton, 1979; Schwartz, 1983; Stevens, 1987; Sullivan, 1977). By the 1980s, communication scholars had begun to research the practical aspects of copyright in the digital realm as well; in 1986, Wesson noted that shareware could help journalism schools avoid some of the costs associated with software. Recent scholarship has continued to focus on practical, but politically-calibrated, advice to media practitioners. Patricia Aufderheide led the development of the Code of Best Practices in Fair Use for Scholarly Research in Communication (Jaszi & Aufderheide, 2010), and Code of Best Practices in Fair Use for Online Video (Jaszi & Aufderheide, 2008), which are intended to inform and educate communication scholars and media practitioners on copyright and fair use while also advising action aimed at protecting and expanding the realm of fair use (Sinnreich & Aufderheide, 2015).

Numerous scholars have examined copyright as a cultural phenomenon or have based their critiques of copyright law within the paradigm of cultural studies. Rosemary Coombe, for example, bridged the fields of anthropology, law, and communications in 1998 to demonstrate the workings of copyright law in the commodification of identity in the context of everyday life. Media scholar Kembrew McLeod expanded the cultural critique of the overzealous use of copyright law in popular culture, providing authoritative discussions of the many examples of copyright overreach in his two books Owning Culture (2001) and Freedom of Expression (2005). Siva Vaidhyanathan’s Copyright and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity also examines the influence of copyright on cultural forms and the biases imposed on culture by copyright as he traces a cultural history of copyright law (2003). Copyright was mainstreamed in the field of cultural studies when, in 2006, the journal Cultural Studies published a special issue titled “Cultural Studies, the Everyday, and the Politics of Intellectual Properties” (Striphas & McLeod, 2006).

A second key contribution of communication and media scholars on the subject matter of copyright has been critical scholarship on the political economy of copyright. By the late 1980s, Ronald V. Bettig had begun a methodical critical examination of copyright law in the context of the political economy of the media industries (Bettig, 1987, 1988, 1997). Other key communication scholars joined (Schiller, 1994; Thomas, 2005). The political economic critique of copyright has also been mainstreamed in communications scholarship, and the journal TripleC: Communication, Capitalism & Critique (formerly TripleC (Cognition, Communication, Co-Operation)) is now one key venue for critical scholarship on the political economy of copyright and intellectual property in the field of communications (see, in particular, Boshears, 2013; Casemajor, 2014; Cohen, 2012; Fernández-Molina, 2009; Fuchs & Sandoval, 2013; Gibson, 2014; Jakobsson & Stiernstedt, 2012; Kostakis, 2013; Perry, 2015; Rigi, 2014; Shepherd, 2012; Stahl, 2011).

Within the realm of critical copyright scholarship, communication scholars have contributed analyses of copyright policy and its implications not only for the character and governance of the Internet but also for traditional media industries worldwide. Katharine Sarikakis (2004) has made note of the broader implications of corporate copyright control over the content and infrastructure of the Internet for the development of the Internet as a “hierarchy-free space of political and cultural action, and as an educational and information–geared medium” (2004) and of the processes of governance and policy laundering that facilitate such shifts (Sarikakis & Rodriguez-Amat, 2014). Robin Mansell (2012, pp. 118–135) has similarly noted that copyright policymaking is a battleground on which differing visions of the internet are imagined. Others, including Pradip Thomas (2001), have examined the role of copyright in the development and political economies of media industries more broadly, in the context of North–South divides (Rønning, Thomas, Tomaselli, & Teer-Tomaselli, 2006; Thomas, 2001).

Communication and media scholars have contributed significantly to the study of remix culture (Lessig, 2008). Bunker (2010) has examined the legal underpinnings of the transformative use doctrine, but other communication scholars have pushed beyond legal doctrine; the importance of the transformative use of works to creativity and the re-imagining of culture is a major theme of communication scholarship in the field of copyright (Collins, 2015). This theme has been explored not only in relation to YouTube (Collins, 2014), fandom (Booth, 2010), and other forums of digital culture, but also in relation to traditional Chinese culture and calligraphy (West & Coad, 2013).

Communication and media scholars have also contributed greatly to examinations of piracy and other forms of resistance to copyright law. Adrian Johns’ book Piracy (2010) is a key text here, examining the history of piracy, as is the special section of the 2015 volume of the International Journal of Communication, dedicated to “Piracy and Social Change—Revisiting Piracy Cultures” (Burkart & Schwarz, 2015). Communication scholars have examined piracy as a form of resistance and active viewership, examining, for example, piracy as a form of resistance to censorship in Russia (Kiriya & Sherstoboeva, 2015) or as a form of active television viewership and social agency that defies both broadcasting and copyright policy and law in China (Shi, 2010). Communication scholars have also examined piracy as a form of access to cultural works. Joe Karaganis’s major study of Media Piracy in Emerging Economies (2011) has examined piracy in developing countries, while other studies have examined piracy as a system of informal television viewing and distribution in Brazil (De Sa, 2015). Communication scholars have focused on the politics of piracy and the Pirate Party itself (Fredriksson, 2015; Jääsaari & Hildén, 2015). Also, scholars have considered the rhetoric and framing of piracy (Cammaerts, 2011) and the Pirate Party’s use of comedy to reclaim the term “piracy” and question the hegemonic discourse of the copyright industries (High, 2015).

Outside the realm of critical scholarship, the Journal of Media Economics has published studies on the effects of piracy (Picard, 2004; van Kranenburg & Hogenbirk, 2005), on the motivations for piracy (Becker & Clement, 2006), and on the economics of digital rights management (Bates, 2008). However, most other key communication journals have focused, to a far greater extent, on critical approaches to copyright law.

Primary Sources

A number of primary sources relating to copyright law are available. All data must, of course, be viewed with circumspection, in light of its source. For those seeking current sources of law, the WIPO Lex service, providing current copyright legislation from most WIPO member states, may be helpful. WIPO also makes intellectual property statistical data, gathered in cooperation with national intellectual property offices, available through its website, along with country statistical profiles, institutional contacts, and information about intellectual property treaty membership. The records, minutes, and documents relating to current and historical WIPO negotiations are available, often in translation, on the WIPO website, while WIPO historical records and books may be found in WIPO’s FTP archive. The website Primary Sources of Copyright Law provides historical copyright legislation and documents, with annotations, from select countries including the United States, the United Kingdom, France, and Germany for the years between 1450 and 1900. Those seeking historical documents relating to Canadian copyright may find them at www.thestruggleforcanadiancopyright.ca, a companion site to the book of the same name.

The official documents of the 1986–94 Uruguay round of trade talks that led to the establishment of the TRIPs Agreement are available through the WTO website, as are the minutes of TRIPs Council meetings and documents outlining technical cooperation activities of member states, international organizations, and other materials. The Stanford University Library houses a General Agreement on Tariffs and Trade (GATT) Digital Library containing materials from 1947 to 1994 that are searchable and downloadable online, including some of the most important documents leading up to the negotiation of the TRIPs Agreement.

Many national intellectual property offices offer public databases of copyright registrations, along with patent and trademark registries. These are often searchable online.

For those searching for multimedia and textual materials that are either available for use through a Creative Commons license or are in the public domain, a number of tools are available. The Creative Commons’ Search tool makes Creative Commons-licensed works findable online. Google’s advanced image search function allows searching by license type. The Wikemedia Commons offers millions of freely usable multimedia files, while Project Gutenberg offers public domain books online.

Excellent sources of current copyright news, including archived news, include Intellectual Property Watch and the website of Knowledge Ecology International.

Further Reading

Benkler, Y. (2006). The wealth of networks: How social production transforms markets and freedom. New Haven, CT: Yale University Press.Find this resource:

Bently, L., & Sherman, B. (2014). Intellectual property law (4th ed.). Oxford: Oxford University Press.Find this resource:

Boyle, J. (2008). The public domain: Enclosing the commons of the mind. New Haven, CT: Yale University Press.Find this resource:

Drahos, P. (1996). A philosophy of intellectual property. Aldershot, U.K.: Dartmouth.Find this resource:

Drahos, P., with Braithwaite, J. (2002). Information feudalism: Who owns the knowledge economy? London: Earthscan.Find this resource:

Elkin-Koren, N. (2010). Tailoring copyright to social production. Theoretical Inquiries in Law, 12(1), 309–347.Find this resource:

Ficsor, M. (2001). Law of copyright and the Internet: The WIPO treaties and their implementation. Oxford: Oxford University Press.Find this resource:

Gervais, D. J. (2003). The TRIPS Agreement: Drafting history and analysis. London: Sweet & Maxwell.Find this resource:

Hettinger, E. C. (1989). Justifying intellectual property. Philosophy and Public Affairs, 18(1), 31–52.Find this resource:

Lessig, L. (2004). Free culture: How big media uses technology and the law to lock down culture and control creativity. New York: Penguin.Find this resource:

Patry, W. F. (2007). Patry on copyright. Eagan: Thomson/West.Find this resource:

Ricketson, S., & Ginsburg, J. C. (2006). International copyright and neighbouring rights: The Berne Convention and beyond (2d ed.). Oxford: Oxford University Press.Find this resource:

Sunder, M. (2007). The invention of traditional knowledge. Law and Contemporary Problems70, 97–124.Find this resource:

Vaidhyanathan, S. (2003). Copyrights and copywrongs: The rise of intellectual property and how it threatens creativity. New York: New York University Press.Find this resource:

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