Book Reviews

Warner, Julian. Copyright, data and creativity in the digital age: a journey through Feist. London: Routledge, 2021. x, 167 p. ISBN 978-0-367-90285-8. £120.

The books on copyright in library and information science are usually written to explain the subject to information professionals and provide guidance on its application in various situations. They usually deal with possible infringements of laws in the course of work with documents and information sources by users or libraries, or other institutions. Alternatively, the authors of such books take the direction of advocating open and free access to all kinds or intellectual production under copyright and suggest ways on how to broaden such access legally or through lobby and influence of various legislatures and bodies. This book takes an entirely different direction, which, first, has scared me as seemingly requiring significant juridical competence to review it, and then drawing me into the argumentation presented by the author. But let us start from the beginning.

The aims of the book as I have understood it are as follows: first, to clarify what makes a product copyrightable and how this thin line between copyrightable and the rest is drawn by the US law and how these criteria affect other jurisdictions; second, to refute the criticism directed towards a court decision that has set the criteria of copyrightability suitable and applied in the digital age when so many information sources are produced by or with the help of digital technologies.

The particular ruling of the court that is the object of scrutiny in the whole book was written by the Justice Sandra Day O'Connor of the Supreme Court of the USA in 1991 for the appeal in the case of Feist Publications, Inc., v. Rural Telephone Service Co. The author presents this court decision in detail in the first chapter of the book. The most important aspect of this decision is the dismissal of the doctrine of the so-called sweat of the brow and setting the criteria of creativity as essential for copyright.

The second chapter outlines the critiques of this decision that the author sets out to refute by analysing the text of the ruling itself. The outlined critique concerns the complexity of the ruling and difficulties it presents for interpretation, the vagueness of the concept creativity, the disonance with the existing understanding of labour theory of copyright, when authors have the right to benefit from their own intellectual labour (p. 15), and therefore destroys the incentive for work. It was also argued that this ruling negates previous precedents, undermines the conceptions of natural justice, such as fairness. The criticism has also addressed the lack of precise explanation how the decision relates to the digital age and other jurisdictions, especially, that of the European Union.

The chapters from 2 to 5 present the close reading and the coherent analyses performed by the author step by step, exploring the concept of creativity with utmost diligence deepening and widening it in each chapter, demonstrating its basic simplicity and consistent application throughout the text. Each chapter also identifies the elements of the court decision that show its connection with natural justice, fairness, implications and suitability for the digital age as well as its relation to European Union jurisdiction. The final two chapters summarise the results of the analysis in several ways, presenting the refutation of earlier critique, sequence of arguments, and suitability of the approach.

The whole research is performed using the approach of Oliver Wendell Holmes, a renowned researcher of law and a Justice of the US Supreme Court (1941-1945). Logic and linguistic analysis are the two main methods used for investigating the text of the ruling. The main concept of creativity is examined by identifying what it is not, by contrasting it with mecahnic, computational, non-creatinve work. The author also identifies how the level and amount of creativity are presented, understood and measured by the authors of the ruling. The creativity is one of two sides of originality, consisting of the independent creation and creativity, where independent creation is a rather straightforward concept, while creativity is seen as complex and ambiguous by its critics. The author creates the concept map to help his readers follow the progress of the analysis and the argumentation of its internal self-consistency and external relevance to the digital age.

I usually find the legal texts boring and impenetrable because of the dense professional terminology and dry style. Necessities of profession have made me learn to read some of them, especially, the ones related to information society and library work, which include copyright as well. However, I have never read them so closely and diligently as it was done by Julian Warner. Moreover, the way he has read the court ruling is fascinating and far from boring, despite some technicalities and repetitions. I was captivated to the extent that have recommended the book to some of the law students, who I know, as an example of creative and entertaining analysis, which nevertheless is serious and professional.

I would not say that the style of the book is easy to read and simple, however, it is very clear, logical and persuasive because of its coherence and gradually increasing complexity. Apart of the maps that I have already mentioned, the author uses other tools to focus the attention of the reader, such as, boxes with extracts from the ruling illustrating his current argument, propositional formulas, truth tables, and footnotes.

However, my favourite device used in the book to follow the argumentation and development of the analysis in a purely metaphorical way is named by the author the narative motif. This poetic motif relates to a journey, but consists of several components: Brer Rabbits' briar patch, the Wicket Gate and the Doubting Castle from the Bunyan's The pilgrim's progress, the navigation of the Labyrinth as in the Monotaur legend, and a double reference to the Ulysses from Homer's Odyssey and Joyce's novel. It provides an aditional layer of meaning to the work done by the author, but also to the object of the analysis - the ruling itself and its significance.

All in all, the author has one by one proved that the critique of the ruling in a rather local and narrow case of Feist Publications, Inc., v. Rural Telephone Service Co. is not only significant for establishing the criteria for copyrightability in the digital age and over different jurisdictions, but that the critique directed towards is refuted by discovering its internal logic and cosistensy.

As I have mentioned, I have already suggested that the law students and even some law practitioners could be interested in this book, but it is also useful for information science researchers, especially those dealing with information policy and law issues.

In general, I think that this is by far the most entertaining and useful text on legal issues that has explained the copyright and its basis to me more than any other texts that I have read so far. One should realise that this is a very particular perspective on just one court decision, but it also provides a very wide understanding of the underlying issues and implications as well as introduces a very interesting method of research rarely used in information science.

Elena Maceviciute

University of Borås
February, 2021

How to cite this review

Information Research is published four times a year by the University of Borås, Allégatan 1, 501 90 Borås, Sweden.