Writing About Comics and Copyright

Home , Joe Matt, Underwater (comics), Vortex Comics, Yummy Fur (comics)

CREATe Working Paper 2013/9 (December 2013) Writing About Comics and Copyright

Authors

Ronan Deazley Jason Mathis University of Glasgow www.jasonmathis.ca [email protected] [email protected]

Initially released as a pre-publication edition privately printed for the authors, limited to a print run of 200 copies.

CREATe Working Paper Series DOI: 10.5281/zenodo.8379.

This release was supported by the RCUK funded Centre for Copyright and New Business Models in the Creative Economy (CREATe), AHRC Grant Number AH/K000179/1.

[ii] For Moira and Ruby

[iii] [iv] TABLE OF CONTENTS

Introduction 1 Comics scholarship and clearing rights 3 What is a ‘work’? 6 Insubstantial copying 12 Criticism and review 16 Current proposals for reform 20 Conclusion 23 30 Afterword / Manifesto 28 Notes

[v]

[1] [2] COMICS SCHOLARSHIP AND CLEARING RIGHTS Academics who research and write about the visual world often complain about the way in which copyright law can hinder their scholarly endeavours, and with good reason. Writing about visual work without reproducing that work is an impoverished exercise, for both writer and reader. But, reproducing visual material can trigger concerns on the part of the conscientious author or – more often – demands on the part of the publisher about the need to secure copyright permission. In this respect, comics scholarship is - ing rights for publication can be frustrating and time-consuming, andno different academic from publishers any other often field manage of visual the or cultural business studies. of copyright Clear clearance by making their authors responsible for securing permissions. European Comic Art provides a good example. When an article is accepted for publication, authors - mit copyright agree- mentsare ‘required and all to subnec- essary permission letters for reprinting or modifying copy- righted materials, both textual and

- taininggraphic’, alland permis are- sions‘responsible and clearing for ob any associated fees.’ [3] Not all publishers, however, adhere to such a black and white posi- tion. The Journal of Graphic Novels and Comics is published by Tay- publisher acknowledges that reproducing short extracts of text lor & Francis. In the ‘Authors Services’ section of their website, the when permissionand other types is needed, of material the publisher ‘for the directspurposes its ofauthors criticism to the may Pub be- possible without formalPermissions permission’. Guidelines To better. understand lishers Association’s

To better understand what rights need to be cleared, authors are - - presslydirected relate to the to publisher’s the reproduction own FAQs of visualabout material,using third-party and of those ma onlyterial twoin an concede academic the article. possibility Thirteen of reproducingof the publisher’s work FAQswithout ex permission (they relate to, respectively, the use of ‘screenshots or - grabs of film or video’ and the use of ‘very old paintings’). lisher is purporting to accurately represent the law in this area. What is not clear from the FAQs document is whether the pub

If so – as we shall see – the FAQs[4] document is clearly deficient. If, however, Taylor & Francis is simply using the FAQs document to set out the parameters of its own editorial policy on the reproduction of copyright-protected third-party material, then so be it: the publisher is perfectly entitled to adopt such editorial guidelines - rial policy that fails to take full advantage of the scope which the copyrightas it sees fit.regime I would allows suggest, for the though, lawful that reproduction in cleaving of to copyright- an edito protected material without need for permission, the publisher is missing an opportunity to enable and encourage its contributors to augment and enrich comics scholarship as a discipline. It is in this respect that The Comics Grid is more ambitious and forward-thinking: it actively promotes the lawful use of copyright- protected content for the purposes of academic scholarship. The - journal’s copyright policy sets out that third-party imagesFair are Usere Checklistproduced for on further the basis information. of ‘educational This isfair a checklistuse’, with that readers has been and developedcontributors to directedhelp academics to Columbia and other University scholars Libraries’ make a reason- able and balanced determination about whether their use of copy- Copy- right Act right-protected work is permissible under s.107 of the US Obviously, locates its copyright advice within the 1976:The Comicsthe fair Grid use provision. with an interest in both the history and the current state of the UK copyrightcontext of regime, US copyright my particular law. But, focus as awithin Glasgow-based this comic academic, concerns the extent to which academics – or indeed anyone interested in writing about comics – can rely upon UK copyright law to reproduce extracts and excerpts from published comics and graphic novels without having to ask the copyright owner for permission.

To address that issue we must consider three key questions. What constitutes ‘a work’ protected by copyright within the context of- comics publishing? What does it mean to speak of ‘insubstantial copying’ from a copyright-protected comic? And what can be cop ied lawfully from a comic for the purpose of criticism and review? [5] WHAT IS ‘A WORK’? The Copyright Designs and Patents Act

1988 (the CDPA) provides a appreciatedetailed and what exhaustive latitude list there of eightexists types within of thework copyright that qualify regime for forcopyright the reproduction protection of within copyright-protected the UK. So, before work one without can properly permis- - omatic: one can only sensibly and reasonably interrogate notions ofsion, substantial one must copying understand and fair what dealing constitutes – about ‘a which work’. more This belowis axi

To be sure, for most copyright-protected content what constitutes – in relation to an identified ‘work’. is: the novel, the poem, the playtext, the score, the painting, the photograph,‘a work’ will andnot sopresent on. Like many the conceptual proverbial challenges.elephant, we The tend work to know the work when we see it. With comics, however, things are not always so straightforward. One characteristic of comics is that individual storylines are often presented to the reader, played out across a number of issues: sim- ilar to the serialisation of literary works – often published with ac- companying illustrations – by Victorian novelists such as Dickens regard, say, Great Expectations or Collins. If Dickens’s work was still in copyright today would we as ‘a work’, even though it was first published in serial form? Almost certainly yes; few would seek to argue otherwise. ShouldCerebus we the readAardvark (certain). Published comics over in a a similarperiod vein: that is, works first published in serial form? Consider Dave Sim’s of nearly 30 years (1977-2004),Church & this State groundbreaking comic is best understood as a series of ten ‘novels’ collected into 16 ‘books’. The andthird published of these ‘novels’,as a novel in two volumes, was (Church first published & State Volume across I and59 issues Church between & State 1983-88 Volume (IssuesII 52-111) before being collected

in 1987 and 1988 respectively).Gospel of Mat So:- for copyright purposes, what is the ‘work’? Or what about Chester Brown’s adaptation of the [6] thew Yummy Fur Issue 15 (March Yummy Fur (Issues ? Brown began his adaptation in Underwater (11 issues, 1989). It continued in the remaining issues of appeared16-32), and in Underwaterthen in Brown’s Issue next 11 inproject: October 1997 and, at the time of1994-97). writing, TheBrown most has recent yet to instalment complete his(‘Chapter work on 20, the verses remaining 1-29’) eight chapters. But again: what, here, is the ‘work’?, and does our Brown,understanding in this respect, of ‘the work’provides shift an dependingintriguing case on what study. we In knowYum- about the author’s own creative process? [7] my Fur Issue 20 he offers his readers an insight into the way he constructs his comics (at least, circa 1990).

- whereasBrown typically most comic works artists with sketchpage layouts or draft of abetween page of fivecomic and art sev as aen single panels page, (which Brown panels draws are each rarely panel uniform individually, in size or on shape). a separate But, - sheet of paper (often ‘cheap typewriting paper’), and then assem bles each ‘page’ of the comic by arranging these individual panels on a larger sheet. Given this, should we regard each of Brown’s panels as a ‘work’? [8] Building Stories - Oneously final produced example: by Chris the publisher. Ware’s wonderful Its unconventional format (2012), chal- lengesan exquisite preconceptions artefact, beautifully that anyone rendered – whether by thea long-standing artist, and luxuri comics fan or not – might have about the form and format of the comic. It consists of 14 different types of printed work (individual books, presentnewspapers the andreader broadsheets, with a flip books, a poster, accordion-style complex,fold-outs, multi-layered and so on) which story centred around an unnamed female protagonist, but one that eschews narrative lin- earity. Produced over a peri- are collectively presented to theod of reader ten years, in an these illustrated ‘works’ box: a format inspired by Box in a Valise Marcel Duchamp’s (1935-41). vignettesSo: what isas ‘the separate work’ worksthat is in the themselves, subject of rathercopyright than protection? parts of a The box and its contents? Should we understand each of the 14 richer, more ambitious and intriguing narrative project? Is the box aboutitself ‘a comics work’? who are grappling with copyright clearance issues, My point here is not to make things more difficult for those writing natureor to further of comics obfuscate problematise an already what problematic are otherwise legal often landscape; simple, quite the reverse. But one cannot escape the fact that the very- theconceptual courts routinely distinctions identify in other the fieldsamount of ofliterary the work and that artistic has pubbeen copiedlishing. And as we shall see, these definitions matter; for example,

as a significant factor in determining whether the use of the [9] work constitutes ‘fair dealing’. [10] To return to Cerebus: reproducing one page from Church & State – a work that runs to 1220 pages in its entirety – is a very different prospect to the reproduction of a single page from one of the 59 individual issues that progress the Church & State - titatively speaking, it is the difference between reproducing 5% of storyline.Church & Quan State novel. an individual comic and reproducing 0.08% of the

But we will return to the concept of ‘fair dealing’ in due course. For whichnow, it in is turnenough blurs to the reiterate boundaries that identifying of permissible what and constitutes impermis ‘a- siblework’ use when for dealingboth copyright with comics owner can and be user.conceptually problematic, twoLet usobvious presume, strategies however, that thatan academic one can or confidently researcher identify might rely the upon‘work’ when with reproducing which one is material dealing; from that that being work the without case, there the need are - andfor permission review. from the copyright owner. They concern: (i) insub stantial copying; and, (ii) fair dealing for the purpose of criticism

[11] INSUBSTANTIAL COPYING

- Section 16 of the CDPA sets out the various ‘acts restricted by- copyright’: that is, the different types of protected activity that re quire permission from the copyright owner. The legislation pro vides, however, that the protection granted only extends ‘to the copyingwork as aless whole than or a any substantial substantial part part of theof it’. work. Put another But where way: does it is lawful to make use of another’s copyright work, as long as you are It is said that substantiality depends more upon the quality rather one draw the line between substantial and insubstantial copying? than the quantity of what has been taken. In many respects this militates against the likelihood of successfully relying upon an argument of insubstantial copying when reproducing material – even a single panel – from a comic without permission. Without wishing to indulge in cliché, if there is any truth in the claim that a picture paints a thousand words, the argument that reproducing even a single panel from a comic might be regarded as qualitatively significant copying is likely to enjoy some traction.

[12] To understand what lawful insubstantial copying might mean in relation to a comic, one must understand the comic as sequential art. his seminalWill Eisner Understanding first wrote Comicsabout .the Of particularcomic as sequential interest is artwhat in 1985. In 1993, Scott McCloud developed the concept further in psychologyMcCloud has of to narrative. say about McCloud ‘closure’ argues(the experience that comics of ‘observingrely upon the parts but perceiving the whole’), a foundational concept in the that occurs in the space between comic panels, often referred to as ‘closure’ as an agent of ‘change, time and motion’: a phenomenon and space, offering a jagged, staccato rhythm of unconnected moments.‘the gutter’. But closureHe writes allows as follows: us to connect ‘Comics these panels moments fracture bothand men time-

- tally construct a continuous, unified reality’. And whereas closure uponin the the context active of participation film and television of the reader. is ‘continuous, largely invol untary and virtually imperceptible’, with comics closure depends Consider the single panel from Understanding Comics reproduced on the next page. If you are reading this comic online, then, with this panel, you are looking at a digital copy of a digital copy of a printed copy of an image that incorporates a drawing of an iconic twentieth century painting. By itself, the image is simply an image, bearing as much significance (or not) as the reader cares to invest in it. But whensequential presented nature as of part the of comic a sequence, form that as isMcCloud imper- ativeputs it,here, ‘the and, image I would is transformed suggest, wheninto something applying well-established more: the art of comics’. It is the [13] principles of copyright law to the comic as ‘a work’, we should be art form. That is, if the phenomenon of closure is as integral to the verysensitive nature to theof the unique comic vocabulary as McCloud and suggests, grammar then of comics – without as an a – the reproduction of a single panel from a comic should not typically be regarded as an instance of substantialsequence, without copying: the at gutterleast not from a qualitative perspective. [14] There is, of course, something counterintuitive about this analysis: one presumes someone writing about a comic chooses to reproduce a particular panel from the comic precisely because it is significant. And, on its face, this logic appears to be at odds with my argument that a single panel from a comic should not be understood that argument does not mean that the panel cannot or should not to be qualitatively substantial or significant. And yet, adhering to webe regardedhold in mind as significant – and clearly within differentiate the context between of a scholarly – the two article different(or indeed, contexts a review within or which a blog). the In image this respect, is reproduced: it is essential the comic that no contradiction in the idea that the same image might be quali- tativelyas a copyright-protected insignificant in the ‘work’, former and context, the scholarly while article.simultaneously There is being intellectually or illustratively significant in the latter. Also, I make no claim here about whether a single panel from a comic may or may not be a quantitatively comic within which it appears. That will always depend upon the significant part of the example, it is easy to see how reproducing a single panel from a threeindividual or four circumstances panel daily undernewspaper consideration. comic strip Quantitatively, would amount for to substantial copying. But consider again the panel from Under- standing Comics: it is one of six panels on a page in a comic book of 215 pages. It represents approximately 0.1% of the work that is Understanding Comics. Does that amount to substantial copying

– from a quantitative perspective – for the purposes of the CDPA?

[15] CRITICISM AND REVIEW -

TheSection actual 30(1) wording of the ofCDPA the permitslegislation copying is as follows: for the purpose of criti cismFair and dealing review, with so longa work as forthe the copying purpose constitutes of criticism ‘fair or dealing’. review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompa-

work has been made available to the public. nied by a sufficient acknowledgement and provided that the

So, there are two obvious questions to ask: what constitutes ‘fair dealing’?, and what qualifies as ‘criticism and review’?

dealing is not determined subjectively (that is, from the perspec- On the first point, I’d like to offer an important correction: fair again, the courts have stressed that the concept of fair dealing is to betive tested of the objectively person alleging. Lord Justice copyright Aldous infringement). put it very succinctly Time and in Hyde Park by the objective standard of whether a fair minded and honest person would have(2000): dealt ‘the with Court the mustcopyright judge work the fairnessin the same [of themanner use]

- mary[as the of defendant]’. current copyright doctrine on the concept of fair dealing. RecentOtherwise, court the decisions PA’s advice have is, indicatedin many respects, a number a reasonableof factors worth sum bearing in mind, many of which are alluded to in the PA Guidelines. For example, in Ashdown v. Telegraph Group -

(2001) Lord Phil [16] lips identified three considerations of particular importance: (i) amountwhether and the importancework competes of the commercially material that with has thebeen original copied work; from the(ii) whetheroriginal work.the original In Fraser-Woodward work was published or not; and, (iii) the also stressed that the motives of the user are important, as is the actual purpose (2005), Mr Justice Mann- uine piece of criticism or review, or is it something else, such as an of the new work that is being produced (‘Is it a gen onattempt the circumstances, to dress up the reproducing infringement an of original another’s work copyright in its entirety in the couldguise ofbe criticism’).regarded as Importantly, fair. Mann J decided that, depending

the PA Guidelines: they set out that copying is permissible pro- But what constitutes ‘criticism and review’? Again, let’s consider of the work being copied (i.e. substantial comment, as opposed to vided there is ‘a significant element of actual criticism and review- - mere reproduction), although this is sometimes interpreted liber- rectedally’ (emphasis at the work added). being Unfortunately, copied is out ofthis step advice with isboth likely the to literal mis wordinglead. The ofsuggestion the CDPA that and the with criticism existing in copyright question needsjurisprudence. to be di The legislation is unambiguous that criticism can be concerned - over, the courts have established that the scope of the exception with ‘the work’, ‘another work’, or ‘a performance of a work’. More work or performance per se, but can extend to the ideas, doctrine, is not confined to a critique or review of the style or merit of a [17] or philosophy underpinning the work, as well as to its social or moral implications. The comments of Lord Justice Robert Walker, in Pro Sieben Media AG v. Carlton UK Television Ltd

(1999), provide- a useful touchstone: that ‘“criticism or review” [is an expression] of wide and indefinite scope’; that ‘[a]ny attempt to plot [its] pre- cise boundaries is doomed to failure’; and that it is an expression well‘which as shouldacademic be publishersinterpreted – liberally’.much greater Without scope doubt, for reproducing s.30(1) of copyright-protectedfers the academic working work thanin the the field PA ofGuidelines comics scholarship appear to con– as- cede. comics that I have included within this comic. Upon what basis do Consider, for example, the various images from other people’s both strategies discussed so far: insubstantial copying, and fair dealingI reproduce for criticism them here? and review.I could Withoutoffer justifications doubt, the latterthat rely provides upon me with my most robust defence, but I have offered no criticism or review of the works from which the images wereThe taken. Comics So whatGrid is ‘the work’ that I am critiquing or reviewing? I have a number of ‘works’ in mind, including (but not limited to): ; PermissionsTaylor & Francis’s Guidelines FAQs documentCopyright concerning Designs the and use Patents of third- Act itself.party Withoutmaterial hesitation,in academic I wouldarticles; defend the Publishers my reproduction Association’s of the copyright material reproduced; and the within this comic as lawful (and

Only in relation to one illustration did I seek permission from without having cleared rights). Crisis to(what be clearI took that to be) I did the notcopyright seek permission owner: the twobecause panels I considered from itIssue necessary. 31 (reproduced There is onnothing page 2about of this this comic). illustration Now, it – is when important com- pared with the rest of the copyright-protected material that I have reproduced in this comic – that marks it out as warranting special attention or consideration (at least not from a rights-clearance perspective). Rather, my motivation was far more self-regarding [18] and mundane. Dear Reader, a grand reveal: the young man in those panels is none other than myself, aged seventeen. (Ah vanity, thy in that particular image, is one that will no doubt be familiar to manyname isacademics Deazley.) Thatwho said,write my about experience, visual culture. in trying I towrote clear torights the permissions department of Egmont UK on 6 May 2013 as follows:

[19] CURRENT PROPOSALS FOR REFORM

[20] welcomed. The government-funded UK Research Councils make clearThe decision that research to introduce should the be newrelevant exception to society for quotation and wider is tosoci be- it should have impact. It is right that the copyright regime should enable,etal concerns; not inhibit, it should those engageaspirations. the public The government and empower should people; take full advantage of the latitude afforded under European copyright endeavour – including the dissemination of that research – to the fullestlaw to possible ensure theextent, new albeit quotation without exception unduly facilitatescompromising research the economic interests of copyright owners. [21] Indeed, in this context, the IPO strikes the right note in emphasis- extent necessary, and without competing with sales of the original work’ing that the quotation of works should be permitted ‘only to the- their purpose,. And again: works ‘[a]s using this exceptionextracts will will not be substitute limited to for, “fair or dealcom- peteing” andwith, extracts originals will be limited to the extent necessary to serve-

’. This focus on the likely commercial competi andtion publishingbetween the – shouldtwo works generally in question be unburdened underscores from the the extent vari- to which quotation – within the context of academic scholarship copyright clearance. Would anyone sensibly claim that the copyright-protectedous costs (whether material financial that I orhave administrative) reproduced in associatedthis comic com with- mercially competes with, or acts as a substitute for, any of the un- derlying works?

To be sure, a less nimble and less enlightened copyright regime – one that was less minded to enable freedom of expression – might thus secure a potential revenue stream for copyright owners. But copyrightrequire that has users never seek been permission concerned solely for all with such securing quotations, any and every potential revenue stream for copyright owners; nor should- ment.it. The Or, type to putof use it in and copyright quotation legalese: that we these have types been of discussing use fall out in- withthis comic what mightis not reasonablysuch use as be should regarded require as the permission normal exploita or pay- prejudice the legitimate interests of the authors concerned. tion of copyright protected work; neither do they unreasonably

[22] CONCLUSION - tation exception make it easier for academics writing about com- icsWill – theseor indeed proposed any academic reforms workingmake a difference? in the humanities Will the – new to repro quo- duce copyright-protected work within their published research towithout researchers needing who to disseminateclear rights? theirProbably work not: through at least websites not in andany blogs,significant as well way. as Where other theytypes might of grey make literature. a difference Rarely is isin therelation content of this type of material subject to editorial or other third-party intervention, and as such researchers themselves can choose to protected content without the need for formal permission. benefit from an exception that enables greater use of copyright- But the mainstay of academic publication lies in books, book chapters, and journal articles, with journal publica- - nant form across all disciplines. More- over,tion firmly that establisheddominance asappears the predomi to be increasing. For as long as these types of output dominate the research landscape, academic publishers will remain the principal gatekeepers to the dissemination of scholarly research. And for as long as they do, any meaningful from the scope of these new exceptions isopportunity likely to be for marginal, researchers if not to entirelybenefit bargained away as part of the publication process. We have seen how the Publishers Association interprets the existing exceptions far more narrowly than it needs to in the advice it gives its members on copyright permissions. We also know that, in any event, academic publishers typically manage the business of copyright clearance by making their contributing authors respon-

[23] sible for securing permissions, and even when the use of the material is covered by an exception. The imperatives underpinning

- likelythose behavioursto diminish –in maximising the mind ofprofit the andpublisher minimising anytime the soon. risk (or In short,fear) of it copyrightwill make litigationno difference – are to entirely an academic cogent, that and the they copyright are un such as criticism and review, if the publisher does not choose to take advan- regime enables quotation from a work for purposes might still have to be paid. tage of that exception. Rights will still have to be cleared; and fees - lishingAnd why is ashouldn’t global success academic story, publishers and one thatseek should to maximise be celebrated profits, and minimisesupported. their In 2007, risks? the The estimated simple reality annual is thatrevenue academic generated pub by (English-language) scientific and scholarly journal publication was just under $8bn (or just over £4bn), the bulk of which revenue (68-75%) was generated through academic library subscriptions.

Moreover, this is an industry that has sustained year on year growth throughout the current economic crisis. By 2011, for example, the annual revenue generated by journal publishing had risen to $9.4bn. To be sure, the nature of research communication is changing, but academic publishers will continue to perform an integral role in the future of scholarly endeavour and enterprise for many years to come. Indeed, it is important that they do so. They certify and review research, copy-edit, type-set[24] and proof it for publication; they advertise, market and distribute the journals in which the research is published, develop new tools and platforms for engag- ing with that research, and archive and preserve it for the longer term. They add value in making our work easier to discover and navigate through citation linking and the allocation of persistent - How much identifiers (digital object identifiers, or DOIs), coding for web dis butsemination, certainly and they other do add semantic value. publishing techniques. value academic publishers actually add is a question for debate,

[25] [26] [27] [28] [29] NOTES was produced on behalf of the British Academy: Copyright and research in This comic has been produced with the humanities and social sciences: A the support of CREATe: the RCUK British Academy Review Centre for Copyright and New Business Models in the Creative Economy (www. (September 2006). You can find the full report of this essay (in a more traditional here: http://www.britac.ac.uk/ create.ac.uk). An extended version policy/copyright-research.cfm. available through the Publications to the journal of European Comic Art sectionacademic of the format) CREATe will website be (www. made The ‘Information for Contributors’

is available here: http://journals. create.ac.uk/publications).In the notes and comments that berghahnbooks.com/eca/index. follow, all references to material and php?pg=notes.PAGE 4

the Taylor & Francis website can be quotations from online sources are The ‘Authors Services’ section of accuratePAGE 1 as of 30 September 2013. usingThirdPartyMaterial.asp.found here: http://journalauthors. The Comics Grid here: www. tandf.co.uk/permissions/ comicsgrid.com.If you don’t already know it, you’ll find using third-party material in As well as being the Editor in Chief aTaylor journal & Francis’sarticle are FAQs available about of The Comics Grid, Ernesto Priego is

University, London, and a researcher here: http://journalauthors. a Lecturer in Library Science at City tandf.co.uk/permissions/ usingThirdPartyMaterialFAQs.asp. affiliated to the University College of Permission Guidelines are available include:London Centrecomics for scholarship, Digital Humanities. digital The Publishers Association’s humanities,His research library interests science, and expertise open access publishing, online and mobile here: http://www.publishers.org. uk/images/stories/AboutPA/PA_ journalism, social media, and scholarly PAGE 5 communications. Permissions_Guidelines.pdf. For details of The Comics Grid’s PAGE 2 submissions policy, as well as the The two panels reproduced on this

Millar and John McCrea, Crisis # 31 submissions.journal’s copyright information, see: page are from “Her Parents” by Mark http://www.comicsgrid.com/about/ PAGE 6 (Nov. 1989) Fleetway Publications: Copyright Designs and [15-19PAGE 3 (17/5-6)]. Patents Act The report referred to on this page You can find the 1988 (as amended) set out [30]in full here: http://www.legislation. PAGES 12 & 13 gov.uk/ukpga/1988/48/contents.PAGE 7 The economic rights conferred upon The panel reproduced on this page is of the CPDA include the right to: copy a copyright owner under section 16 Yummy Fur from: Chester Brown, “Matthew, 5:11- the work; issue copies of the work to 7:27”, # 21 (June 1990) the public; rent or lend the work to VortexPAGE 8 Comics Inc.: 18/6. the public; perform, show or play the Chester Brown, Yummy Fur # 20 (April ofwork the in work. public; For communicate further details, the work see sectionsto the public; 17-21 and of themake CDPA. an adaptation 1990) Vortex Comics Inc.: 5/1-4. clear that any reference to the doing The reference to ‘cheap typewriting Peepshow (Princeton, Wisconsin: ofSection an act 16(3)(a) restricted of theby CDPAcopyright makes in paper’ is taken from: Joe Matt, relation to the work as a whole or KitchenPAGE 9 Sink Press, 1991), 67/19. anya work substantial concerns part doing of it that act ‘in The panel on this page is from: Chris Building Stories ’ (emphasis added).The man at the lectern is David Ware, “Browsing”, (London:PAGE 10 Jonathan Cape, 2012), 1/3. Church & State Volume IntellectualVaver, and Property the quote Journal is from his I (Windsor, Ontario: Aardvark- Davidarticle: Vaver ‘Harmless is Emeritus Copying’ Professor (2012) of Dave Sim, Intellectual Property & Information 19-28. Technology Law in the University of Vanaheim,PAGE 11 1987), 421. Oxford, and the former Director of the Although I suggest that there are Oxford Intellectual Property Research Centre. Currently, he is Professor of be relied upon when reproducing Intellectual Property Law at Osgoode copyright-protected‘two obvious strategies’ material that without might the need for permission, there Chief of the Intellectual Property is, in fact, a third strategy worth JournalHall Law School, and the Editor in considering: fair dealing with a work PAGE 13 for the purpose of non-commercial which he founded in 1984. research (in accordance with section argument in relation to this third ComicsFor Will and Sequential Eisner’s discussionArt: Principles of strategy29(1) of in the the CDPA). extended I develop version theof andthe comicPractices as from sequential the Legendary art, see: this essay that will be made available Cartoonist through the Publications section of the CREATe website (www.create. (New York and London: WW Norton & Co., 2008 (first Understandingpublished in 1985)). Comics: Scott The McCloudInvisible ac.uk/publications). [31]developed Eisner’s analysis further in: Art Horizons – which, at the time, was part-owned by John McCrea. When (Northampton MA: Kitchen Sink John was commissioned to illustrate Press, 1993). (The McCloud quotes arePAGE from 14 pages 5 and 66-68.) draw me into the story (the central McCloud, Understanding Comics character,“Her Parents” apparently, he asked reminded if he could him

PAGE 16 : 25/6. rest in history. (And yes, those are my The full citation for the Hyde Park case of me). Photographs were taken; the is: Hyde Park Residence v. David Yelland actualPAGE 19clothes.) These three panels are based upon an (2000) WL 462. (The quote from Lord exchange of emails over a two week JusticePAGES Aldous16 & 17 is at paragraph 38.) The full citation for the Ashdown case myself and the Brand Manager in the is: Ashdown v. Telegraph Group [2001] Permissionsperiod (6-21 Department May 2013) of betweenEgmont UK. PAGES 20 & 21 EWCA Civ 1142. (Lord Phillips’s discussion of ‘fair dealing’ can be foundPAGE 17at paragraphs 66-77.) employees of the Intellectual Property The full citation for the Fraser- The ‘dialogue’ between the two Woodward case is: Fraser-Woodward of various arguments in favour of v. BBC [2005] EMLR 22. (Justice Office is a fictionalised account

introducing a new quotation exception Mann’s comments on fair dealing are set out in the IPO’s Impact Assessment at paragraphs 55-70.) IA No: BIS0310 (‘Exception for use of Hubbard v. Vosper quotations or extracts of copyright For Lord Denning’s quote, see: bis0310.pdf.works’), which Although can be the found dialogue here: is [1972] 2 QB 84 http://www.ipo.gov.uk/consult-ia- (pagePAGE 1894). The full citation for the Pro Sieben Impactfictional, Assessment the arguments document. presented are case is: Pro Sieben Media AG v. Carlton all based on the actual text of the IPO’s UK Television Ltd PAGE 21

[1999] FSR 610. current policy on open access to (The quotes from Lord Justice Robert publiclyFor details funded of Research research, Council see here: UK’s WalkerPAGES 18are & at 19 page 620.) For those interested in how I came to feature in Crisis #31, the story is http://www.rcuk.ac.uk/research/ simple enough. Between the ages Pages/outputs.aspx.PAGE 22

Dark of 16 and 22 I worked in Northern Again, these quotes are taken from Ireland’s first comic shop – [32]the IPO’s Impact Assessment IA No: and scholarly journal publishing (The

BIS0310. the bottom of the page relates to the ofNetherlands, revenue generated IASTM Publishers, in 2011, is 2009) from The ‘copyright legalese’ referred to at (page 16). The more recent estimate so-called ‘three-step test’ which can Convention. The Berne Convention the third edition of Ware and Wabe’s be found in Article 9(2) of the Berne report (published in 2012)(again, is an international agreement that pageThe estimates 16). of the investment and (which originally dates to 1886) to recognise and confer copyright in publication and distribution protectionrequires signatories on the literary to the andConvention artistic profits made by academic publishers works of authors from other signatory report by the Research Information countries. In this way, the Convention Network:activities Activities, in 2007 arecosts from and afunding 2008 enables the operation of the flows in the scholarly communications international copyright regime. Article system in the UK

. You can find the the9(2) countries of the Convention of [the Berne provides Union] that to report here: http://www.rin.ac.uk/ permit‘[i]t shall the be reproduction a matter for of legislation such works in our-work/communicating-and- in certain special cases, provided that disseminating-research/activities- becosts-and-funding-flows-scholarly- found on pages 32 and 33 of the with a normal exploitation of the work commu. (The figures quoted can andsuch does reproduction not unreasonably does not prejudice conflict report.)PAGE 25 PAGE 23 the legitimate interests of the author’. the cost of producing and peer- The 2009 survey referred to here reviewingThe figures research on this pageare also concerning taken was conducted on behalf of the Research Information Network: Communicating Knowledge: How from the 2008 Research Information and why UK researchers publish Network Report (see above). (The and disseminate their findings figures quoted are from pages 30 and 32PAGE of the28 report.) The REF – or the Research Excellence (September 2009). You can find communicatingknowledgereport.this report here: http://www.jisc. ac.uk/publications/research/2009/ UKFramework higher education – is the official institutions. mechanism The REFfor assessing produces the assessment quality of research outcomes in (The figures quoted are from page 16 for submissions made by participating PAGE 24 of the report.) institutions that: provide useful The estimate of the revenue generated benchmarking information for the by academic journal publishing in 2007 is from M. Ware and M. Mabe, The stm report: an overview of scientific bodieshigher in education decisions sector;about the establish future [33]reputational yardsticks; assist funding some measure of accountability for theallocation substantial of research public funding; investment ensure in research. Whether the REF process of making these determinations itself is an efficient and effective means remains open to question. You can find out more about REF 2014 here: http://www.ref.ac.uk/

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RCUK Centre for Copyright and New Business Models in the Creative Economy

College of Social Sciences / School of Law University of Glasgow 10 The Square Glasgow G12 8QQ Web: www.create.ac.uk