Swings and roundabouts: The impact of legal drafting on the language and understanding of copyright law and the need for educational materials^†

† The authors form part of the Copyrightuser.org team and are the authors of the educational resources published in the ‘education and schools’ section on Copyrightuser.org. Copyrightuser.org is a collaborative project between CIPPM, Bournemouth University and CREATe, University of Glasgow.

Abstract

Legislators face the challenging task of drafting copyright law, which takes into account the views of various stakeholders, intended policy and technological developments, whilst ensuring that the wording and language that is used is accurate and precise. Meeting these objectives means that the law in its legislative form can be hard-to-understand, complex and not easily accessible to the layperson. This article explores steps, which have been put in place by various organisations and online resources, to assist in the understanding of copyright for the public and schools, with particular focus on education and teaching materials – as presented on Copyrightuser.org.

Keywords:

• copyright
• legislation
• legal drafting
• legal education
• language

Notes

† The authors form part of the Copyrightuser.org team and are the authors of the educational resources published in the ‘education and schools’ section on Copyrightuser.org. Copyrightuser.org is a collaborative project between CIPPM, Bournemouth University and CREATe, University of Glasgow.

1 In a broad sense, law making and law reform is carried out by (1) Parliament; (2) Courts (in the interpretation of the law); and (3) Law Reform Agencies (LRA) such as the Law Commission of England and Wales (in an advisory role to the Parliament). For the purposes of this paper, the authors refer to Parliament in speaking of the legislator. In this context the term ‘drafter’ is used as an extension of this definition, taking into account the legal draftsmen who operate on behalf of the Government. See Zander (2004).

2 For example, drafters are now refraining from using the word ‘shall’ due to the ambiguity of the word meaning both a passive and obligatory term. See, Christopher W., Fuzziness in Legal English: What Shall We Do with ‘Shall’ in Wanger and Cacciaguidi-Fahy (2006).

 

3 To date there have been the nine copyright-specific Directives. These have included Directives on the protection of computer programs; rental/lending rights and related rights; satellite broadcasting and cable retransmission; term of protection; protection of databases; copyright in the information society; artist’s resale right; orphan works and collective rights management, as well as the enforcement Directive, which is of wider application. The provisions of these copyright-related Directives have effect throughout the European Economic Area, comprising the European Union, resulting in each Directive having to be translated into 24 languages leading to language restraints. Sterling and Mendis (2015, Chapter 27).

4 The drafting of the new text and data mining copyright exception introduced in 2014, is an example of this challenge. See, The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014, No. 1372, regulation 3(2), amending section 29A CDPA 1988. See Lee (2015, 231–232).

5 Copyright ‘stakeholders are therefore doing a huge amount of awareness raising to help people understand the value of IP in today's society.’ A repository of the copyright awareness campaigns throughout Europe can be found at: https://oami.europa.eu/ohimportal/en/web/observatory/public-awareness-campaigns

6 The UK National Curriculum does not expressly provide for Intellectual Property education; however, it also does not prohibit it. See, Intellectual Property and Education in Europe (2015, 34). See also, Weatherley (2014, 21).

7 As far back as 2006, the UKIPO published ‘Think Kit’ a free educational resource aimed at 14–16 year olds to provide Intellectual Property learning within Enterprise Education: http://webarchive.nationalarchives.gov.uk/20140603093549/http:/www.ipo.gov.uk/whyuse/education/education-thinkkit.htm

8 A study was conducted in order to discover the most frequently asked questions about copyright, using the same bottom-up approach. The study sampled from the population using Yahoo Answers. This initial search provided 172,870 results. In order to limit the scope of the study, candidate cases were restricted to ‘questions and answers written in English’. The sample was further limited by time period, using only those entries of one year old or less. This provided 24,438 results, ranging from May 2012 to April 2013. From these results, the first 200 were selected. The 200 results were categorised thematically in order to finally produce the top 20 most common questions. See http://copyrightuser.org/topics/faqs

9 This can be illustrated by reference to the animated film on Copyrightuser.org, The Adventure of the Girl with the Light Blue Hair (Episode 1 of the Game is On! web series), which won an AHRC Research in Film Award for the ‘Best Film in the Year’ on 12 November 2015. In keeping with the methodology of Copyrightuser.org, 12 ‘Case Files’ complement the video and draw on the various elements of the film to explore key principles and ideas underpinning copyright law, creativity, and the limits of lawful appropriation and reuse. The animated film was produced by Mr Bartolomeo Meletti (CREATe, University of Glasgow) and Professor Ronan Deazley (Queens University of Belfast). The Case Files were authored by Ms Hayleigh Bosher and Dr Dinusha Mendis (CIPPM, Bournemouth University). The Case Files were edited by the General Editor of Copyrightuser.org, Professor Ronan Deazley.

10 The project, which was carried out during 2013–2014 by researchers at the Centre for Intellectual Property Policy and Management (CIPPM) at Bournemouth University was funded by AHRC under a contract with CREATe, the RCUK Centre for Copyright and New Business Models in the Creative Economy at University of Glasgow.

 

11 The questions in the Unit Specification are known as ‘Prompts’. The Four Prompts are four bullet point sentences set out in the OCR Unit Guide, from which the students then have to develop answers relating to their chosen case study.

12 The methodology used by the researchers to create the educational resource was approved by the OCR at their Annual AS/A Level OCR Media Studies Conference, which took place in London on 21 March 2014. See Bosher and Mendis (2015, 2–3).

13 This is known as a schema. Schemas are mental structures that people use to organise their knowledge about the world. Schema theory was developed by Bartlett who argued that prior knowledge is stored in the brain in form of schemas, which provide one of the main ways in which information in memory is organised, see Bartlett (1932). This was developed by Rumelhart and Norman who suggested that schema learning occurs in three ways, including ‘accretion’. This is where a new example of an existing schema is recorded and added to the relevant schematic information in long term memory, see Rumelhart and Norman (1981).

14 Semantic memory is ‘a mental thesaurus, organised knowledge a person processes about words and other verbal symbols, their meaning and referents, about relations among them, and about rules, formulas and algorithms for the manipulation of these symbols, concepts and relations’ Tulving (1972).

15 This is done through the tuning or restricting or memory schemas where they are either elaborated or refined through experiences indicating that the existing schema is not adequate in the former, or a new schema is created, often with reference to a similar, pre-existing schema in the latter. See Rumelhart and Norman (1981).

16 ‘Learning style’ refers to the characteristic way a person acquires and uses knowledge.

Theories about learning styles indicate that learners have a preferred mode of learning, that people learn in different ways, that a variety of learning styles will be present in any classroom, and that no one teaching method is effective for all students. (Lustbader 1999, 455).

17 Willingham goes on to explain for example that ‘knowing that a letter was written by a Confederate private to his wife in New Orleans just after the Battle of Vicksburg won’t help the student interpret the letter unless he knows something of Civil War history’ (Willingham 2007).