The E-Book Nova A Disputation Collaboration Cohesion Copyright

The E-Book Nova: A Disputation Collaboration, Cohesion, Copyright

The New Murphy A combination of bot and human taggers have anatomised Murphy, allowing reader to adjust settings, e. g. : Change Murphy so it’s set in present-day Tokyo Enhanced media content Embedded video clips (like magic books) Read _____, a version of Murphy in which the main character … is you! (Perhaps as a comic too). Scholarly commentary Meta content Audio narration (human &/or text-to-voice) Bespoke P. O. D. paper version Illustrations Read the Potter remix replaces each character with its nearest Hogwarts equivalent, so Harry need never die! Gogarty is Dumbledore! Yay! Automated glossing systems Comparative databases: e. g. “if you like this sentence, you might like this book …” Multiple editions in the traditional sense (authorial and editorial amendations, critical apparatus, etc. ) MURPHY by Samuel Beckett Multiple versions Illegal (? ) fan editse. g. CROTZLOB 887’s , edit, which removes all mention of Miss Counihan, “Beckett’s Jar-Jar Binks” Animated typography Font face, size, interleading etc. A particular reader’s comments, marginalia, MSTing + Readers have input into which books studios select for film adaptation, even influence casting etc. Cf. Snakes on a Plane. Book club forums / wikis: a community of readers discuss Murphy fanfics i. e. original writing using , Beckett’s characters & world. E. g. pornographic “slashfic” featuring characters from Murphy, Waiting for Godot & More Pricks Than Kicks. Clean versionsfor children and very mild people Designed piecemeal by the reader, or bundled together into “skins” or “versions” Words to a page, indenting & other layout, etc. Fragments of Murphy appear in various readers: The Beckett Reader, The Celtic Bum Reader, The Terror of Non. Existence Reader Translations Abridgements for the Beckett , reader on the go Versions for bigots: e. g. references to dinosaurs taken out for Creationist market Consumers pick the category of ads: e. g. octopusrelated, ethical Super-abridged crib versions cf. , Cliffs Notes Appearance Any aspect of any of these incarnations of Murphy is liable to be assimilated into other works. The New Book manifests as “scriptons” (Aarseth); whatever is seen at any moment is the result of filtering a complex, reflexive cybertextual palimpsest, fractal in the sense that many of its nodes would likewise be the result of filtration. Hubs would come and go. Murphy the film Machinima-esque. CGI film created in a few days from 90% existing footage. Books are extensively “tagged, ” so books which would not otherwise be filmed can easily be organised according to their common cinematic requirements. Similarly, various Murphy games / expansion packs: interactive tie-ins are produced for only moderately-popular titles Sponsored versions (free, ad-driven) Illegal (? ) plagiarisedversions, perhaps under another title Highly derivative other works, contestably plagiaristic Product placement, including targeted contextual marketing Automated or semi -automated: equivalent of spam “scraper sites”

“If by books you are to be understood as referring to our innumerable collections of paper, printed, sewed and bound in a cover announcing the title of the work, I own to you frankly that I do not believe (and the progress of electricity and modern mechanism forbids me to believe) that Gutenberg’s invention can do otherwise than sooner or later fall into desuetude as a means of current interpretation of our mental products. . . ” — Octave Uzanne, Scribner’s (1894)

“The stable hierarchies of the printed page [. . . ] are being superseded by the rush of impulses through freshly minted circuits. The displacement of the page by the screen is not yet total (as evidenced by the book you are holding) — it may never be total — but the large-scale tendency in that direction has to be obvious to anyone who looks. ” — Sven Birkerts, The Gutenberg Elegies (1994/2010)

Part I • “The New Book” — a thought experiment Part II • Originality in UK Copyright Law — influential factors

I. The New Book – Hardware i. Pad • Text, images, videos, web sites, applications • Connects to the internet via mobile phone networks • Touch screen doubles as a keyboard • Drawbacks compared with Kindle et al. : − screen is LCD rather than e-ink, which makes it harder to see in sunlight − power-hungry

I. The New Book – Converged media animated typography hypertext A blend of … • Type cybertext • Audio “texts that involve calculation in their production of scriptons” (Aarseth) • Images & video • Applications pre-recorded/produced • Social media machine-synthesised editors multiplayer games malware wikis expert systems live performance forums blogs chatterbots syndicated feeds

“ 10, 000 of us reading the same Kindle book, each of us highlighting and taking notes. Would the aggregate of this not be illuminating? ” — Craig Mod, Embracing the Digital Book (2010)

I. The New Book – Converged media And watching, listening, playing, experiencing • Reading • Writing • Editing • Publishing • Reviewing • Criticising • Curating • Archiving • Performing • Adapting Maintaining relationships, belonging to communities • Sharing • Reporting news • Consuming news • Working • Playing Mixes aspects of. . .

I. The New Book – Building blocks Recombination Semantics Prosumption

I. The New Book – Recombination

I. The New Book – Recombination Full dearely shalt thou by it (quoth Roger Chartier) may I get A weapon: and with that in stead of weapon, he did set His hand uppon a vowd harts horne that on a Pynetree hye Was nayld, and with two tynes therof he strake out eyther eye Of Lara Buckerton: whereof sum stacke uppon the horne, and sum did flye Uppon his beard, and there with blood like jelly mixt did lye. A flaming fyrebrand from amids an Altar Linda Carreiro snatcht, With which uppon the leftsyde of his head Eyal Poleg latcht A blow that crackt his skull. The blaze among his yellow heare Ran sindging up, as if dry corne with lightning blasted were. And in his wound the seared blood did make a greevous sound, As when a peece of steele red hot tane up with tongs is drownd In water by the smith, it spirts and hisseth in the trowgh. Eyal Poleg from his curled heare did shake the fyre, and thowgh He wounded were, yit caught he up uppon his shoulders twayne. A stone, the Jawme of eyther doore that well would loade a wayne. The masse therof was such as that it would not let him hit His fo. It lighted short: and with the falling downe of it A mate of his that Robert Ritter hyght, it all in peeces smit. Then Jerome Mc. Gann restreyning not his joy, sayd thus: I would the rowt Of all thy mates myght in the selfsame maner prove them stowt. • The centauromachy from Ovid’s Metamorphoses, trans. Arthur Golding (1567), with some adaptations.

I. The New Book – Recombination

I. The New Book – Recombination Full dearely shalt thou by it (quoth Roger Chartier) may I get A weapon: and with that in stead of weapon, he did set His hand uppon a vowd harts horne that on a Pynetree hye Was nayld, and with two tynes therof he strake out eyther eye Of Lara Buckerton: whereof sum stacke uppon the horne, and sum did flye Uppon his beard, and there with blood like jelly mixt did lye. A flaming fyrebrand from amids an Altar Linda Carreiro snatcht, With which uppon the leftsyde of his head Eyal Poleg latcht A blow that crackt his skull. The blaze among his yellow heare Ran sindging up, as if dry corne with lightning blasted were. And in his wound the seared blood did make a greevous sound, As when a peece of steele red hot tane up with tongs is drownd In water by the smith, it spirts and hisseth in the trowgh. Eyal Poleg from his curled heare did shake the fyre, and thowgh He wounded were, yit caught he up uppon his shoulders twayne. A stone, the Jawme of eyther doore that well would loade a wayne. The masse therof was such as that it would not let him hit His fo. It lighted short: and with the falling downe of it A mate of his that Robert Ritter hyght, it all in peeces smit. Then Jerome Mc. Gann restreyning not his joy, sayd thus: I would the rowt Of all thy mates myght in the selfsame maner prove them stowt. • The centauromachy from Ovid’s Metamorphoses, trans. Arthur Golding (1567), with some adaptations.

I. The New Book – Recombination Roger/NNP Chartier/NNP cried/NN , /PPC “Unpunished/NNP shall/MD not/RB go/VB This/DET fact/NN , /PPC if/IN arms/NNS are/VBP found/VBN against/IN the/DET foe. ”/NN He/PRP looked/VBD about/IN , /PPC where/WRB on/IN a/DET pine/VBP were/VBD spread/VBN The/DET votive/NN horns/NNS of/IN a/DET stag/NN 's/POS branching/VBG head/NN : /PPS At/IN Lara/NNP Buckerton/NNP these/DET he/PRP throws/VBZ ; /PPS so/RB just/RB they/PRP fly/VBP , /PPC That/DET the/DET sharp/JJ antlers/NNS stuck/VBD in/IN either/DET eye/NN : /PPS Breathless/NNP , /PPC and/CC blind/JJ he/PRP fell/VBD ; /PPS with/IN blood/NN besmeared/NN ; /PPS His/PRPS eyeballs/NNS beaten/VBN out/IN , /PPC hung/VBD dangling/JJ on/IN his/PRPS beard/NN. /PP Fierce/JJ Linda/NNP Carreiro/NNP , /PPC from/IN the/DET hearth/NN a/DET burning/NN brand/NN Selects/VBZ , /PPC and/CC whirling/JJ waves/NNS ; /PPS till/IN , /PPC from/IN his/PRPS hand/NN The/DET fire/NN took/VBD flame/NN ; /PPS then/RB dashed/VBN it/PRP from/IN the/DET right/NN , /PPC On/IN fair/JJ Eyal/NNP Poleg’s/NNP temples/NNS , /PPC near/IN the/DET sight/NN : /PPS The/DET whistling/VBG pest/NN came/VBD on/IN , /PPC and/CC pierced/NN the/DET bone/NN , /PPC And/CC caught/VBD the/DET yellow/JJ hair/NN , /PPC that/IN shrivelled/NN while/IN it/PRP shone/NN. /PP Caught/VBN , /PPC like/IN dry/JJ stubble/NN firdd/NN ; /PPS or/CC like/IN seerwood/NN ; /PPS Yet/RB from/IN the/DET wound/NN ensued/VBD no/DET purple/JJ flood/NN ; /PPS But/CC looked/VBD a/DET bubbling/JJ mass/NN of/IN frying/VBG blood/NN. /PP His/PRPS blazing/VBG locks/NNS sent/VBD forth/RB a/DET crackling/JJ sound/NN ; /PPS And/CC hissed/VBD , /PPC like/IN red/JJ hot/JJ iron/NN within/IN the/DET smithy/NN drowned/VBD. /PP The/DET wounded/JJ warrior/NN shook/VBD his/PRPS flaming/JJ hair/NN , /PPC Then/RB (/LRB what/WP a/DET team/NN of/IN horse/NN could/MD hardly/RB rear/JJ )/RRB He/PRP heaves/VBD the/DET threshold/NN stone/NN , /PPC but/CC could/MD not/RB throw/VB ; /PPS The/DET weight/NN itself/PRP forbade/VBD the/DET threatened/JJ blow/NN ; /PPS Which/WDT dropping/NN from/IN his/PRPS lifted/VBN arms/NNS , /PPC came/VBD down/RB Full/JJ on/IN Robert/NNP Ritter’s/NNP head/NN ; /PPS and/CC crushed/JJ his/PRPS crown/NN. /PP Nor/CC Jerome/NNP Mc. Gann/NNP then/RB retained/VBD his/PRPS joy/NN ; /PPS but/CC said/VBD , /PPC “So/NNP by/IN their/PRPS fellows/NNS may/MD our/PRPS foes/NNS be/VB sped. ”/NN Similar text to the previous slide, tagged according to parts of speech using Matt Butler’s Open Wound http: //openwound. mbutler. org/

I. The New Book – Recombination “Summer holidays!” Chet Morton exclaimed. “No more school until September. ” The stout, good-natured boy lounged half asleep between Frank and Joe Hardy in the front seat of a powerful yellow convertible. With a soft purr, the car moved swiftly past the carefully tilled fields of the Pennsylvania Dutch farmers. Dark-haired, eighteen-year-old Frank Hardy was at the wheel. He kept his eyes upon the road which would lead them to the green bulk of the Pocono Mountains later that sunny June afternoon. Meanwhile, his blond-haired younger brother Joe said, “There used to be witches round here, Chet. See that sign? It’s to ward them off. ” He pointed to a brightly painted circular design on a huge red barn. Chet Morton had opened an eye as the car moved past the barn. “What is it? ” he asked. “A hex sign, ” Joe told him. “Supposed to keep off lightning and protect the farm against witches. ” “Witches!” The plump boy straightened up, looking worried. “Today? ” “Sure, ” Joe Hardy went on teasingly. “If a witch puts a spell on your cow, she won’t give milk. Those circles keep off the course. ” • The first page of The Curse of the Screeching Owl, by Franklin W. Dixon

I. The New Book – Recombination • Some images from Robbie Cooper and Julian Dibbell, Alter Ego: Avatars and their Creators (2010)

I. The New Book – Recombination “Summer holidays!” Chet Morton exclaimed. “No more school until September. ” The slender, good-natured boy lounged half asleep between stout, good-natured boy lounged comfortably between stocky, good-natured boy rested half asleep between lean, good-natured boy lounged half asleep between Frank and Joe Hardy in the front a powerful yellow convertible. Frank and Joe Hardy front seat of a powerful yellow With a soft With a car purr, the car moved swiftly past the convertible. purr, thesoft moved swiftly past the carefully tilled fields of the Pennsylvania Dutch farmers. carefully the Pennsylvania Dutch farmers. Chestnut-haired, eighteen-year-old Frank Hardy was at the wheel. He veered eratically upon the road which would lead them to the green bulk of the Pocono Mountains later that sunny June afternoon. Meanwhile, his bald younger brother Joe said, “There used to be witches round here, Chet. See that sign? It’s to ward them off. ” He pointed to a brightly painted circular design on a huge red barn. Chet Morton had opened an eye as the car moved past the barn. “What is it? ” he asked. “A hex sign, ” Joe told him. “Supposed to keep off lightning and protect the farm against witches. ” “Witches!” The slenderboy straightened, looking worried. plump stocky boy straightened, looking sly. lean boy straightened, looking interested. uncomfortable. “Today? ” “Sure, ” Joe Hardy went on morosely. “If a witch puts a spell on your cow, she won’t give milk. Those circles keep off the course. ” • The first page of The Curse of the Screeching Owl, by Franklin W. Dixon, with some modifications Chet

I. The New Book – Semantics Frank chuckled merrily, and ran his hand through his curlydark hair. his chestnut Suddenly, the candle blew out, and the room was plunged into curlydark! plunged into chestnut!

I. The New Book – Semantics Find-and-replace • Hermione for Chet? • Easy to swap one signifier for another • Harder to swap one sign for another • Especially when it’s embedded in a complex system of co-conditional signs (e. g. a narrative) • And problems associated with “intentional statements”

I. The New Book – Semantics Location. Of r person or Is. A survive oa l y. G d. B ate te ea Cr swallow Mo tiv Has Prop Has. Property cake d. B y U Is. A cheesecake At. Location r o d. F se dessert Has. Prerequisite oven Us s es bake Motivated. By. Goal ire es D sir erty sweet r Fo e sir ed satisfy hunger De e s. D e us Ca Used. F e d. F or a Fo ed Cap follow recipe cook Us Of ble Is. A restaurant Us Chet en u v be Used S st La For eat s Ha t

I. The New Book – Semantics TV Tropes web site • Written collaboratively, without hierarchy or codified norms • Users identify tropes in popular culture and collect hundreds of examples of them – for fun E. g. “You Have Failed “Mooks” E. g. Me. . . For The Last Time!” • “[…] This is related to Karmic Death, in that it means the hero Nameless, Faceless, Horribly Awful Shots, Incompetent, Unwilling To Retreat, and completelybad guys will use provide a doesn't have to dirty their hands. Some disposable: they The Blofeld chance for the characters to show off their flashy fighting skills and Ploy to pull off the underling murder. Others will drop the offending can be shot without Trap The hero. The War Roomhis heart to Save underling through a guilt. Door in might find it in into a Shark The Villain, forgive him, […]” Accept Him Into His Inner Circle, Pool or other Deathtrap even • but the guys String Samurai, the Big Bad starts to deliver the usual be “[…] In Six whose only crime is not finding a better employer will Shown No Mercy […]” last—’ then pauses, looks down, and says, ‘You have failed me for the • “[…] shoes. ’ Next cut shows the Big Bad walking off. Guard are Genre ‘nice In Terry Pratchett’s Guards! the Palace in them […]” • Savvy. Subverted in the Douglas the prospect of facing a single, Pirate “[…] enough to be terrified at Adams Doctor Who episode ‘The unarmed, smiling foe: after all, that is ‘When someone failsdangerous Planet. ’ The villainous Captain hisses statistically the most me, Mr. kind ofsomeone dies!’ — then kills a random extra instead of the Fibuli, enemy […]” • “[…] In Robin of Sherwood, the merryhe’s too useful to kill of the of person who actually failed, because men killed ten or so just out sherriff’s men per the Evil Overlordto wonder what kind of to do pique. Of course, episode. You had List specifically says not recruitment package was being offered […]” this […]” • “[…] The codified hero/villain. Stargate Atlantis. The Venture Brothers Double-subverted in the interaction in episode ‘Irresponsible’ naturally invokes mooks; two, Number 21 at a disgraced Mook, but — Genii commander Kolya aims his gun and Number 24, become important recurring characters. Thoughand Kolya dismisses him, and does not shoot. The mook thanks him they get beaten, maimed killed on a regular last chance respect their enemies (as one of them telling him it’s his basis, they. . . before angrily giving away his gun saysrepair […]” for of Brock Samson, ‘slayer of men, slayer of henchmen!’) […]”

I. The New Book – Semantics Commonsense AI • E. g. MIT’s Concept. Net • Vast Commonsense Knowledge Bases, filled with facts about the world • Accessed e. g. through fuzzy logic inferencing, which can approximate human reasoning better than precise inferencing Semantic Canon • Tagging — the same content can be “filed” in many tag categories at once • Tag instances can themselves be tagged • A vast, metadataenriched corpus • Machine-readable, analogous to Semantic Web – an ensemble of technologies, oriented towards enriched Web content, machinemanipulable at the semantic level How? • Folksonomy / ontology tension? • Mass online collaboration – tagging is done by people, bots, and by combinations of the two • Data capture: − e. g. Enhanced Editions tracks at what times readers start and stop reading − e. g. Text 2. 0 tracks exactly the reader is looking on the page

“It’s one thing to say ‘I really like Weaving the Web’’ on a web discussion forum. However, no computer could process what you said. RDF [Resource Description Framework] gives you a way to make statements that are machine-processable. Now the computer (of course) can’t actually ‘understand’ what you said, but it can deal with it in a way that seems like it does. ” — Aaron Swartz

“<http: //aaronsw. com/> <http: //love. example. org/terms/really. Likes> <http: //www. w 3. org/People/Berners-Lee/Weaving/>” — Aaron Swartz

I. The New Book – Scraping Scraper sites Philip Parker • “Buy cheap flights to Mary Wollstonecraft” • The “author” of tens of thousands of books • Scraper sites detect search engine queries, mine content, and weave together web sites of (somewhat) relevant content, often together with pay-per-click or payper-view advertising • E. g. The 2007 -2012 Outlook for Tufted Washable Scatter Rugs, Bathmats and Sets That Measure 6 -Feet by 9 -Feet or Smaller in India • Uses recombinatory algorithms • Parker’s books are “skimwritten”

“[…] collect publicly available information on a subject […] and, aided by his 60 to 70 computers and six or seven programmers, he turns the results into books in a range of genres […] printed only when a customer buys one […]” — New York Times, April 14, 2008

I. The New Book – Prosumers • Producing/consuming • Forgiving, creative, editorialising • Perhaps not a “bookish” mind? (JG) • Comfortable with recombinant texts, the new Brutalism of visible function, hypermediacy, etc. • Nonetheless, the impulse to remediate hypermediacy as immediacy. . .

I. The New Book – Prosumers • Rev, the camera man protagonist of a Machinima short, tries to pick up a pink intern backstage

I. The New Book – Prosumers Fan art • Fanfic (e. g. Xena: Warrior Princess) • Fan cuts (e. g. Star Wars: The Phantom Menace) • Seamlessness not a high priority • Many other examples! • Collage a dominant mode? • Interest in cross-overs, mash-ups (“shups”) • Similarities to detournément, but not overtly political

“[…] prosumers do more than customize or personalize their wares; they can selforganize to create their own. The most advanced users […] no longer wait for an invitation to turn a product into a platform for their own innovations. They just form their own prosumer communities online, where they share product-related information, collaborate on customized projects, engage in commerce, and swap tips, tools, and product hacks […]” — Aaron Swartz

I. The New Book – Summary Recombination Works are volatile composites “scraped” from many sources in many media Semantics Mass online collaboration, data capture, and commonsense AI together create a “Semantic Canon” — allowing the automated manipulation of meaning Prosumption Finally, even if recombinant semantic works are far from seamless, prosumers may still want to read them and use them to “skim write” works for others

Intermission Part I • “The New Book” — a thought experiment Part II • Originality in UK Copyright Law — influential factors

Intermission – Other contexts Miscellaneous • Technological, socioeconomic, institutional, even philosophical • Moral rights • International copyright law • “Neighbouring” law: − breach of confidence − passing off and malicious falsehood − performance right − rental and lending rights − rights protecting the encryption of broadcasts − publication right − public lending right − design rights Contract law • Content owners license access on whatever terms (could be stricter than copyright? ) • They use Digital Rights Management (“DRM”) technologies to police these contracts • The Digital Economy Act 2010, giving force to aspects of a 2001 European Directive, has made it a criminal offence to circumvent DRM technology

“[…] Copyright is a property right which subsists in accordance with this Part in the following descriptions of work […]” — Copyright, Designs and Patents Act (1988), 1(1)

II. Copyright Law – Subsistence Protectableworks Can include tables, databases, compilations, computer programmes • Literary works • Dramatic works • Musical works Includes graphic works, photographs, sculptures or collages, irrespective of artistic quality; and buildings, models and works of artistic craftsmanship where quality may become relevant • Artistic works • Sound recordings • Films • Broadcasts • Typographical arrangements Only original works are protected (CDPA (1988) 1(a))

II. Copyright Law – Originality Concepts from common law Some elision — e. g. the court may consider whether skill and labour “of a literary nature” has been exercised Expression Has there been skill and labour exercised — i. e. is it prima facie original? Subsistence Does the work fall into a protectable category, e. g. literary work? Fixation Is the work “recorded” in a tangible medium?

II. Copyright Law – Subsistence Protectableworks • Literary works • Dramatic works • Musical works • Artistic works • Sound recordings • Films • Broadcasts • Typographical arrangements

“[…] Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise […]” — Copyright, Designs and Patents Act (1988), 3(2)

II. Copyright Law – Originality Concepts from common law Not necessarily fixed — e. g. an off-the-cuff lecture ideas add labour + skill/judgement results in original expressions Original expressions may still infringecopyright (and infringing works may still enjoy copyright protection)

II. Copyright Law – Requirements Jurisdictional Subsistence Fixation Originality

II. Copyright Law – Originality Expression is usually sufficient If labour and skill/judgement are lacking, you could get a “non-original literary work” — e. g. the haphazard compilation of already-copyrighted works. But I think it’s unlikely to be considered an expression. Original expression • Is all expression original? Unless the idea expressed can only be expressed in a limited number of ways (the “Merger Doctrine”) Scenes a faire are expressions which “naturally flow” from unprotectable elements, e. g. plot situations

“[…] [w]hen one is considering a view of a very well known subject […] the features in which copyright is going to subsist are very often the choice of viewpoint, the exact balance of foreground features of features in the middle ground and features in the far ground, the figures which are introduced, possibly in the case of a river scene the craft may be on the river and so forth. It is in choices of this character that the person producing the artistic work makes his original contribution. […]” — Krisarts S. A. v. Briarfine Ltd. [1977] FSR 557, 562

“[…] original expression includes not only the language in which the work is composed but also the original selection, arrangement and compilation of the raw research material […]” — Baigent v. Random House [2007] FSR 24

II. Copyright Law – Requirements Jurisdictional Subsistence Fixation Originality

II. Copyright Law – Ownership Who owns copyright? Where contributions are indistinguishable, whoever has “had the final say, ” or who had the clearest preconception of the work • In most instances, whoever has exercised skill and labour • Joint copyright is a last recourse — the courts would prefer to recognise multiple sole copyrights • Special rules for works created in the course of employment, and computer-generated works

II. Copyright Law – Originality Expression is not necessary? Not much case law • Express Newspapers v. Liverpool Daily Post [1985] FSR 306 — awarded copyright in a computer-generated (? ) grid of letters to the programmer /operator — but this way decided on skill and labour • Getmapping Plc v. Ordnance Survey [2002] EWHC — no problems with recognising computer-generated maps as copyrightable, emphasising the prerequisite investment Economic individuation • In 1997, a new database right (implementing the 1996 European Directive). Oriented to the protection of “substantial investment […] whether of financial, human or technical resources” • Cf. the issue of substantiality in altered copying cases — nonrival objects are less likely to be infringements • Cf. also “fairness” tests in the fair dealing case law

“[…] ‘Computer-generated’, in relation to a work, means that the work is generated by computer in circumstances such that there is no human author of the work […]” — Copyright, Designs and Patent Act (1988), 178(b)

“[…] In the case of a literary, dramatic, musical or artistic work which is computergenerated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken […]” — Copyright, Designs and Patent Act (1988), 9(3)

II. Copyright Law – Labour & skill Few precedents. The court may have to reconsider labour and skill/judgement! –in the context of investment of financial, human and technical resources, and the case law on subsistence, on substantiality and on “fairness” in fair dealing CDPA (1988) 178(b) implies this possibility — but it is hard to reconcile with the continued emphasis on labour and skill/judgement in other areas No Labour and skill/judgement? ” “No Yes No copyright Original literary (etc. ) work? Yes Computer-aided work Copyright of life plus seventy years, and moral rights, belong to the user of the New Book (or her employer, if it was generated in the course of work). Affordance of labour and skill is unproblematic Computergenerated work Copyright of fifty years belongs to “the person by whom the arrangements necessary for the creation of the work are undertaken” (or her employer, if it was generated in the course of work). Probably the user — the court may have to reconsiderlabour and skill/judgement! –in the context of investment q. v. and the case law on joint authorship

II. Copyright Law – Infringement Substantiality • Qualitative not quantitative — a substantial borrowing “might not have a single word in common with the original” (Lord Scott of Foscote). • Closely linked with originality — “a copier is not at liberty to appropriate the benefit of another’s skill and labour” (ibid. ).

“[…] a copier is not at liberty to appropriate the benefit of another’s labour and skill […]” — Lord Scott of Foscote

II. Copyright Law – Labour & skill Lifeworld Then again, maybe this is the excessively permissive explanatory concept, rather than labour and skill. . . • • • Is there an affinity between the non-protectable and the Lifeworld? Everyday, taken-for-granted orientations Difficult to protect what is commonplace, hackneyed, everyday Background of shared dispositions, savoir faire, “what goes without Difficultshared cultural meanings, institutions andimplied by structures saying, ” to protect scenes a faire — works strongly personality contexts/functions — even if they are detailed and remarkable • Cf. Bourdieu’s habitus, Durkheim’s social facts, Habermas’s Lifeworld, • Someone who is not self-governing is governed either by another or by Heidegger’s Dasein, Husserl’s Lifeworld, Searle’s Background, Schütz’s the Lifeworld — cf. emphasis on choice and responsibility in the joint life-world and everyday-world, Wittgenstein’s private language argument authorship case law

II. Copyright Law – Summary Substantial borrowings would infringe. Substantiality is at the court’s discretion. Fair dealing exceptions probably wouldn’t be available Originality Very likely to be considered original, although the subsistence(s) of a converged media work may cause anxiety Ownership Copyright probably belongs to the person responsible for using the New Book Infringement Unlikely to infringe on the rights of programmers or taggers

Final thoughts • Is the writing implied in this thought experiment really that unusual? Is skim-writing that unusual? • Do some artefacts falsely imply that somewhere in their origination the Lifeworld has been surmounted? • Copyright law is unkind to this thought experiment — for the wrong reasons • Copyright law is untroubled the rearrangement of “insubstantial” elements • Detournément is plagiarism — and so is recuperation

© Lara Buckerton, 2010. All rights reserved. This document is confidential and prepared solely for your information. Therefore you should not, without my prior written consent, refer to or use my name or this document for any other purpose, disclose it or refer to it in any prospectus or other document, or make it available or communicate it to any other party. No other party is entitled to rely on our document for any purpose whatsoever and thus I accept no liability to any other party who is shown or gains access to this document.

B-Slides

II. Copyright Law – Moral rights CDPA (1988), 77 -89 The New Book could incorporate automated citations Confetti Records v. Warner Music UK [2003] ECDR 31 emphasised reputational damage — shouldn’t be a problem • Right to be identified as the author • Right to object to derogatory treatment of the work (integrity right) • Right not to have another’s work falsely attributed • Right to privacy of certain photographs and films

II. Copyright Law – Infringement When is copyright infringed? • When certain acts, including copying and adapting, are performed in relation to a substantial part of the copyright work • There are “fair dealing” exceptions for noncommercial research or private study, for reporting current events, for criticism and review, and a few other things Candidates • Authors whose works have been “scraped” • Programmers of the New Book • Taggers whose metadata have been exploited

II. Copyright Law – Ownership Who owns copyright? • In most instances, whoever has exercised skill and labour • Joint copyright is a last recourse — the courts would prefer to recognise multiple sole copyrights • Special rules for works created in the course of employment, and computer-generated works Candidates • The user of the New Book • Authors whose works have been “scraped” • Programmers of the New Book • Taggers whose metadata have been exploited • Somebody else

II. Copyright Law – Infringement Fair dealing • Must fall into one of the exception categories, e. g. “criticism and review” • Must also be fair. HRH Prince of Wales v. Associated Newspapers [2008] EMLR 4 (CA): − decisive factor — is the alleged fair dealing is commercially competing with the copyright owner’s exploitation? − secondary considerations — is the work in the public domain? What proportion of the work is used? What is its proportion to the new work? • There are no parody or transformative use exceptions in UK law

II. Copyright Law – Ownership Prior to the 1988 Act. . . • Whitford report “[…] it is clear that the author of the output can be none other than the person, or persons, who devised the instructions and originated the data used to control and condition the computer to produce the particular result. In many cases it will be a matter of joint author-ship. We realise this in itself can cause problems, but no more than in some other fields, and we are not convinced there is a need for special treatment […]” • 1981 Green Paper “[…] it has been suggested that a more appropriate analogy would be to regard the programmed computer, rather than the computer alone, as a tool. If this approach is adopted it is logical to conclude that the author of the new work is neither of the two parties proposed by Whitford, but instead a third person; namely the one responsible for running the data through the programmed computer in order to create the new work […]” • 1986 White Paper, “Intellectual Property and Innovation” “[…] the question of authorship of works created with the aid of a computer will therefore be decided as for other categories of copyright work, i. e. on the basis of who, if anyone, has provided the essential skill and labour in the creation of the work. If no human skill and effort has been expended […]” • BCS Copyright Committee submission to government “[…] The above are some examples of works that are produced to date with little or no human skill and effort, the emergence of so-called expert systems or artificial intelligence machines will extend the boundaries still further […] The investment to produce such machines is very large and there should be no doubt that works produced therefrom are protected by copyright […] The BCS proposes the creation of a new class of copyright protected works. The copyright owner or ‘maker’ should be defined as the person by whom the arrangements necessary for the making of that computer output or computer-generated work, are undertaken […]”

I. The New Book – Intensionality Hermione wished she were the author of The Mystery Hermione wished she were the author of The Clue of ofthe Screeching Owl. the Aztec Warrior.