contracts are not limited to the music industry and apply to creatives in other industries too.”
Smita Kheria.
knowledge and skills. The conference brings together a number of expert practi- tioners and researchers, each offering their own perspectives and insights. Smita explains her involvement, saying: “In my talk, I will discuss how the role and value of copyright is perceived and understood by different categories of crea- tors, and will consider the similarities and differences in perspectives across divergent creative practices, while appraising the influence of underlying power dynamics, shifting business models, and evolving technologies. “For instance, the economic rights provided under the copyright framework have both an external and an internal aspect in terms of the potential benefit it can provide to the right owner. The external aspect captures the essence of copyright as a ‘negative’ right, that is, the ability to exclude others from the market; i.e. pre- vent infringers from undertaking uses of a protected work that are exclusively granted to the copyright owner and not exempted through copyright exceptions.
“In contrast, the internal aspect is the abil- ity to exploit the uses of a protected work that are exclusively granted to the copyright owner, through contractual arrangements (e.g. an assignation or license) in return for economic or other gain. I will discuss
38 INFORMATION PROFESSIONAL
how creators view the internal and external aspect economic rights and consider the similarities and differences across diver- gent practices (eg writing contrasted with contemporary art).”
Smita highlights two potential disrupters to the current landscape – the first is legislative in nature, the second is technology driven. “One major issue is the role that law can play in improving the bargaining position of authors and performers in contractual relationships,” says Smita. “Recent EU reform under the CDSM Directive 2019 ac- knowledges the weak bargaining position of creative practitioners, and addresses it through various provisions – includ- ing a contract adjustment mechanism, a right of revocation where there is a lack of exploitation of the work, and transparency obligations to ensure that authors receive relevant and comprehensive information on the exploitation of their works. “The UK is neither obliged to, nor intends
to, introduce these provisions. However, the issue of legal reform to better protect authors in contractual relationships has arisen in the context of the UK Parlia- mentary enquiry on the impact of music streaming, including on the income of artists in the industry. The underlying concerns around fair remuneration and
The other issue – one that has gained huge media attention in recent months – is the use of Artificial Intelligence (or machine learning) in a creative capacity. Whether that is ChatGPT writing Nick Cave-inspired lyrics, described by the artist himself as a “a grotesque mockery of what it is to be human”, or AI paint- ings – the current world record price for such a piece is £432,000 (
https://bit.ly/3YfId- pR), there are questions to be addressed. Smita says: “In relation to copyright, issues include the question of protection for works generated by AI powered sys- tems, or works where AI has been used as part of the creative process, as well as the legality of training AI systems with copyright protected materials, without permission, payment, or credit. These questions are very likely to receive scru- tiny through courts in different jurisdic- tions in the near future.” Building on her own research, Smita is currently part of the creative process herself as she writes Close Encounters of the Copyright Kind: Locating the law in the everyday lives of creative practi- tioners. The book will take an alternative view of the popular discourse around copyright’s impact on the creative, as Smita explains: “We often hear polaris- ing views on the role and legitimacy of copyright in the information/post-digital era: ‘Copyright promotes creativity’. ‘Copyright hinders creativity’. ‘Creative activities cannot be incentivised without copyright’. ‘Creative practices can thrive without copyright’. In the wider public debate, particularly on social media, this sentiment is taken to further extremes: ‘I love copyright’; ‘Copyright is violence and record companies are f****** vultures’. “As a counter to these coarse contes- tations, my book asks: does copyright protection actually matter to creators? And what can we learn from creative practitioners’ close encounters with copyright?” Smita adds: “This book will utilise my extensive original empirical research to present a rich and in-depth analysis of: who copyright law matters to and why, who resists its application and why, how a range of factors shapes meanings, beliefs, and practices, around copyright, and how copyright law, theory, and policy could be recalibrated to serve the interests of creators more effectively. The aim of the book is to equip readers with an empirically grounded understanding of the role, value, and legitimacy of the copyright framework for creative practi- tioners, in different creative contexts.” IP
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www.cilip.org.uk/CopyrightConf23 March 2023
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