Danny Titolo is a JD candidate at Osgoode Hall Law School.
“Informing”, “well written”, “insight[ful]”, and “important contribution” (p. 93) are just a few of the words used by Professor Teresa Scassa, Canada Research Chair in Information Law and Vice-Dean Research at the University of Ottawa Faculty of Law, in her recent review of Copyright, Contracts, Creators: New Media, New Rules, authored by Professor Giuseppina D’Agostino, Founder and Director of IP Osgoode and Associate Professor at Osgoode Hall Law School.
In the review in the Canadian Journal of Law and Technology (Book Review, (2011) 9:1 CJLT 93), Scassa begins by stating that although the main focus of the book is on UK law, developments in Canada, the US, and continental Europe are also included in D’Agostino’s analysis. The focus of the book is the exploitation of freelance authors in the digital era and how copyright law should be modified to address this issue.
In the book, D’Agostino dissects the “fraught relationship between publishers and authors” (p. 93). Scassa makes note of this as being unique since it is a clear shift away from the more common legal analysis, which is the relationship between the creators and users of protected works.
The beginning of the book includes an account of how the globalization of the publishing industry and the monopolization by only a few major publishing companies has had a negative impact on the quality and diversity of published work. D’Agostino states that this has turned “freelance authors into sweatshop workers” (p. 94). Scassa is also convinced since the book “provides an engaging account of the history of copyright law from the perspective of the freelance author” (p. 94). The argument is further developed through an analysis of case law and international conventions demonstrating that since contracts between parties of unequal bargaining power tend to favour the larger party, copyright law is “ultimately pro-publisher rather than pro-author” since it does not adequately address this issue (p. 95).
Scassa agrees with D’Agostino’s analysis of how civil law jurisdictions as well as some common law jurisdictions in continental Europe have tended to be more favourable towards the protection of authors (pp. 95-96). The US and Canadian Supreme Courts are neglecting major contract issues between parties entering into publishing agreements.
The review makes note of the difficult issues raised in the book, but that D’Agostino also provides practical solutions through law and policy (pp. 97-98). Firstly, copyright legislation must be changed in a manner that resolves issues of ambiguity in interpreting contracts in favour of authors. Furthermore, the judiciary must take a proactive role by not overlooking the unequal bargaining power of freelance authors when interpreting contracts. Finally, D’Agostino also suggests the assembly of a grievance board and educational initiatives to not only provide freelancers with a better means of pursuing restitution, but also to better inform them of their rights.
The review ends by stating that the book provides some much needed insight in an area of copyright that is neglected and that D’Agostino provides great ideas and perspectives on its reform (p. 98).