Abstract
This monograph provides an ample and current review of international legal and cultural-studies scholarship on copyright as a social and cultural, as well as legal construction. In an arena where legal scholarship is proliferating rapidly, this is a valuable service.
On this basis, James Meese considers the relationships between the concepts of author, user and pirate, applying a heady mix of Althusserian Marxism, cultural studies and critical legal studies. He also has a two-page discussion of science and technology studies (pp. 107–109) but not much application of it. The monograph does not attempt to contribute original new data, but rather to provide an original view of the evolution of copyright law using existing research. It advances the arguments of Carys Craig that the subjects of copyright law, especially the author, need to be seen as social actors imbedded in a cultural, historical and economic contexts, related to other actors such as users.
Meese argues that the concept of pirate needs to be added to this set of relationships. He argues that his three central concepts are in a dynamic relationship with each other, typically unacknowledged in legal practice and theorizing about copyright. (Users for him mostly mean people using existing copyrighted material for another purpose, not consumers. I was not sure where consumers fell in this analysis.) In particular, he notes how piracy takes on a larger role with digital and becomes normalized with new business practices. Meese correctly notes that much analysis has focused on author and users; his analysis contributes in terms of both adding the pirate to the analysis of relationships and also using an Althusserian understanding of subjectivity (i.e. being subjected to superior forces, in this case the law).
This is a comparative book, which is a gift in a field too often focused on one jurisdiction or sets of jurisdictions, and too US-centric. Generally, Meese deals with English, United States, Canadian and Australian law. He provides us with a healthy scepticism about reifying the notion of IP as property at all, much less property with fixed uses, citing examples from all jurisdictions.
It would be helpful to condition some of the generalities that emerge, given real differences in jurisdiction. For instance, he postulates that copyright is incoherent conceptually, not grounded in principle. There is much incoherence in copyright law, which everywhere has developed ad hoc with pressure from copyright holders to expand territory. But in the United States, copyright is anchored in the Constitutional mission to promote the creation of culture. Copyright in the Commonwealth does not anchor itself this way. That has profound consequences for how the legal history unfolds in different jurisdictions. Furthermore, incoherence is a feature, not a bug. It has been valuable to strategic actors, who use it for everything from censorship to blocking potential business competitors to quelling trolls. Incoherence is useful and is unlikely to go away.
Meese argues that exceptions, especially fair dealing, tend to construe the user as a potential infringer, a pirate in the making. This is an elegant and useful point. It deserves some discussion about how differently subjectivity works out in different jurisdictions and cultures, though. As Meese notes, Canadians have come to call their fair dealing exemptions ‘user rights’, the renaming showing a reclaiming of rights and rejection of piracy labelling, while in Australia the narrow fair dealing exceptions that do exist are often regarded by creators, especially authors of text, as barely tolerated stealing. What accounts for the difference? A look at the 2012 Canadian Supreme Court ‘copyright pentalogy’ decisions, which seems to have missed the literature review, would be helpful in beginning to parse it out.
It is always invigorating to see concepts unlocked from a state of reification, but sometimes trying to figure out what Meese is describing is difficult. He does not always distinguish between conceptual categories and actual people; sometimes he is talking about real, even named individuals such as fair-user Stephanie Lenz, and sometimes he is talking about the construction of the social actor in law. He also does not really focus on how people experience, define and resist the categories assigned them; this is a monograph whose through-line is legal actions. For instance, were US judges swayed in making pro-fair use decisions by changing cultural definitions of the user (and if so, from what social spaces?), by the advent of new enabling technologies (and if so, what about them?), by the crucial function of fair use in keeping copyright constitutional (and why that, rather than another way of balancing copyright), by something else, or these things in combination? What is the evidence for any or all of these motivations?
Each of the concepts he has chosen – author, user and pirate – has huge variability by social group, historical moment and jurisdiction, and such variations are not always comprehended in this analysis. Does digital create a new meaning around ‘pirate’? Certainly the efforts of media companies to control their business environment face new challenges with digital reproduction. But to understand the construction of subjectivity, we might also want to look at a longer timeline, to consider the long history of unauthorized re-users and to ascribe agency to more actors. For instance, we might look at the 20th-century dominance of mass media in daily life (leading to copyright extensions and expansions), the huge shifts in US copyright law in 1976 (with repercussions around the world), the US’ post-World War II use of intellectual property in diplomacy, the arrival of the video cassette recorder (VCR), the creation of communities of practice around social media and other historical changes as affecting the use of the terms author, user and pirate. Who is using these terms, and with what purpose? With the concept of pirate, for instance, there’s a chasm between individuals consuming unlicensed IP and large-scale traffickers in IP (Karaganis, 2011).
One great side benefit of this book is Meese’s frank description of how US large-copyright-holder interests have long used Australia as a venue to try out strategies to shore up their interests, and also defend them within Australia. This, and particularly the strong role of the Motion Picture Association of America in framing cultural industries’ policy positions, is too little recognized by Australian creators themselves.
Authors, Users, and Pirates is a good conversation-starter on comparative copyright law, on the relationship between cultural formations and legal formations and on the malleability of concepts too often treated as immutable characteristics.
