Towards a Governance Theory of Copyright Law

By Samuel Ugwumba*
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In the past several months I have been thinking about, and rethinking, copyright law and theory. This rethinking culminated in a paper I was supposed to present at University College London Postgraduate and Early Careers Conference but could not attend due to unforeseen circumstances.
My thoughts will be broken down into two posts. In this first post, I will briefly outline the emergent perspective as a result of this rethinking; the second entitled ‘Towards a Governance Theory: Kenyan and Nigerian Laws on Sound Recordings’ will apply this perspective to concrete issues pertaining to compulsory licensing of sound recordings in the titled countries’ copyright laws.

I refer to this re-thinking or re-understanding of copyright law as ‘Governance of Cultural Works’ i.e. that copyright law is concerned with the production, distribution, and consumption of cultural works. But as many students of copyright know, there is nothing new in this assertion. Copyright is indeed concerned with cultural works/goods! So is this perspective merely a terminological shift? No. It is both a conceptual and analytical framework that enables us, amongst other things, to analyse and understand the complexities, multi-dimensions and purposes of creative freedom at the crux of copyright law. Put differently, it provides a richer frame to understand and rethink the proper architecture of the liberties and limitations underpinning copyright law. It does this by not only situating cultural works as the core subject matter of copyright law but also tracing out the implications of such placement. It is this latter point that puts this perspective at the pedestal of an emergent conceptual and analytical framework. For example, focusing on informational goods as the subject matter of copyright law has the potential to provide (1) a narrow conception of creative freedom and (2) a limited view about the goals of copyright. It is this narrow perspective i.e. copyright as informational works, that undergirds the utilitarian-economic theory of copyright law. This framework understands the subject matter of copyright as nothing more than public goods in which the purpose of the rights granted under a copyright regime is to enable creators exercise their creative freedoms for society’s benefit in the production of more informational works. Furthermore, there is the tendency to focus only on economic growth when the subject matter of copyright law is understood as informational works. This is partly due to the one-sided emphasised connections between the utilisation of information and economic growth by information theorists and sociologists of the 21st century. For example, Manuel Castells in his multi-volume work ‘The Rise of the Network Society’ has charactarised the economy in this society as increasingly reliant on information and informational goods as a result of the distributedness of ICT. Yann Moulier Boutang has also expressed similar views in his work Cognitive Capitalism. The point I make is that there is a tendency to focus solely on wealth maxmisation when the subject matter of copyright law is understood to be informational works. In short, focusing on informational works provides a narrow conceptual framework that is unable to elucidate the non-economic values at stake in copyright law.
When we bring cultural works into the frame, however, creative freedom becomes both an end and a means to development. Put differently, placing cultural works as the core subject matter of copyright law exposes the linkages between creative freedom and various components of development. I think this statement is uncontroversial. After all, Amartya Sen has shown the connections between culture as identity and development. The same could be extended to culture as expression i.e. culture expressed in tangible form. The point is that owing to the linkages between culture, as expression and identity, and development and that copyright is concerned with cultural works, development ought to be the lodestar of copyright law. What though are the institutional limits of copyright law in refocusing it as a development tool? What really is development and what version should copyright promote? These two questions highlight why I have incorporated ‘governance’ into my rethinking of copyright law. Governance shuns universality for contextuality. From a micro perspective, it is about what works for me in the achievement of my objectives given my capabilities etc. The same applies at the macro level. African countries should understand copyright this way. It is a tool for the achievement of an objective. What that objective is and whether copyright is the appropriate tool is left for individual countries.
Accordingly when we re-understand copyright law as concerned with the governance of cultural works, the issue can then be properly rephrased as one about the political economy of development in the cultural sphere. Various benefits arise from this perspective. For example, when we examine the concepts of governance and cultural works underlying my re-thinking of copyright law, it becomes clear that copyright has institutional limits. Arjo Klamer’s contribution in Culture and Public Action has shown that cultural goods are goods for more than their economic value. (Economic value is simply what a consumer is willing to pay for a good in monetary sums). In other words, different values are realisable in cultural works. Secondly, there are different sites or modes for realising these values. This is important. Copyright is a market institution and it may not be suitable for realising non-economic values. Furthermore, a governance theory of cultural works can help us re-think what kind of property norm would undergird a copyright regime. The version of ownership ‘possessive individualism’ informing most copyright regimes is neither the only version of property norm as a matter of historicity and existing practices nor the only type conducive to development. Critiquing this possessive individualism in proprietary norms, Lawrence Liang has offered a ‘relational’ conception of property.
It is important to emphasise, however, that this governance theory of cultural works is neither entirely a negative nor affirmative theory of copyright law. What it seeks to do however is to elucidate the weaknesses and strengths of various institutional approaches to cultural works governance in order to enable African countries select the regime which best achieves their objective. Nevertheless, the goal still remains that of development despite its contested facets.
In summary, the governance theory of cultural works is an emergent perspective that seeks to re-understand the functions, subject matter and limits of copyright law. It is a practical and grassroots approach to regulating the production, distribution and consumption of cultural works that shuns the normative pluralism evident in contemporary copyright scholarship for contextual engagement. The fundamental insights of this approach are 1. It places cultural works as the core subject matter of copyright law 2. Development is a central concern. 3. It goes beyond copyright law by critically investigating its institutional limits. 4. Policy is informed by a bottom-top analysis.
In the next post, I consider the application of this approach to sound recordings.
*Samuel Ugwumba is a Ph.D candidate and University College Cork Law and Business scholar researching on copyright and music. Follow him on Twitter @samwilbanks

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