Book Review: Law, Technology and Cognition

http://ipkitten.blogspot.com/2020/08/book-review-law-technology-and-cognition.html

Our SpecialKat Hayleigh Bosher is a Senior Lecturer in Intellectual Property Law at Brunel University London, a Visiting Research Fellow at the Centre for Intellectual Property, Policy and Management, and the founder of World IP Women. She is also the author of a recent publication, Law, Technology and Cognition.


The book – a monograph based upon the author’s PhD research – is presented in 7 chapters. The first chapter provides a foundation to consider the human element in online copyright infringement. The book notes that the development of copyright law is symbiotically linked with technological development. This is true of the internet, through which data can be in multiple places at once, is subject to limitless copying without loss, may be transformed into new formats, and can reach a wider audience than ever before. In tandem with this technological development is the human element, reflected both in the drafting of regulation and judicial interpretation; the book addresses these components through the framework of internal and external perspectives of the internet, as presented in the next chapter.


The author presents Professor Orin Kerr’s concept of internal and external perspectives of the internet as a framework through which to consider online copyright infringement in the second chapter. The facts of the internet depend upon which perspective one takes: the external perspective takes a literal view of the internet as a network of computers in physical places, connected by wires and cables. Through this perspective, precise laws are drafted to conform to technological development, but the pace of technological change limits the lifespan of such regulation. By contrast, the internal perspective views the internet as a virtual space in and of itself. This perspective tends toward a purposive approach that uses metaphor to map the law onto the cyber space. 

The third chapter presents the reproduction right in copyright law through the framework discussed in the previous chapter. The first section of the chapter traces the historical development of the reproduction right, through the drafting of the Copyright, Designs and Patents Act of 1988 (CDPA). The second section of the chapter delves into Section 17 of the CDPA; particularly addressing subsections (2)-(6), the chapter presents both the external and internal perspectives within the law.

Chapter 4 considers the judicial application of subsections (2) and (6) of Section 17 of the CDPA – infringing reproduction by storage and by transient or incidental copying. The chapter demonstrates the development of the definitions of storage and transient copying, which have come to mean access to and display of copyright materials. Then, the chapter presents both the external and internal approaches taken by judges to address the reproduction right online. The chapter concludes by noting the indistinction between judicial application of storage and transient copying, as recent case law has centered on “temporary storage within the random access memory (RAM).”


Atticus communicates 
his hunger to the public

The fifth chapter centers on copyright infringement by way of communication to the public. The chapter begins by tracing the development of the right of communication to the public, beginning with Article 11(bis) of the Berne Convention, then Section 20 of the CDPA, and the eventual incorporation of Article 3 the Information Society Directive (InfoSoc) through the Copyright and Related Rights Regulations of 2003. The chapter concludes with the application of the external and internal perspectives framework to Section 20 of the CDPA.

Chapter 6 addresses copyright infringement by way of communication to the public in light of internet, analyzing case law and judicial interpretation of Section 20 of the CDPA both before and after the amendments of the Copyright and Related Rights Regulations of 2003. While the concept of communication via the internet is best understood through an internal perspective, statutory law has defined communication to the public in online copyright infringement through an external perspective. Through a comparative analysis of case law concerning Section 20 of the CDPA, this chapter presents the effects of the Copyright and Related Rights Regulations of 2003 amendments on UK case law; the author shows that judges demonstrate internal perspectives when online infringement is concerned, taking a purposive approach in their decisions.


In the conclusion, the author offers suggestions for a potential UK copyright act following the departure from the European Union, drawing a distinction between online and offline regulation.

This book will be of particular interest to academics, students, and policymakers across the UK.


204 Pages
Hardback ISBN: 9780367338336, £83.10
Ebook ISBN: 9780429322211, £33.29

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