‘Lextual poaching’: a doctrinal and empirical investigation into the importance of unauthorised derivative works of fanfiction to society in the digital age and how Article 17 CDSM undervalues them.

Flaherty, Ruth (2020) ‘Lextual poaching’: a doctrinal and empirical investigation into the importance of unauthorised derivative works of fanfiction to society in the digital age and how Article 17 CDSM undervalues them. Doctoral thesis, University of East Anglia.

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Abstract

Fanfiction is a type of user-generated content (UGC) produced mostly online for free on websites such as Fanfiction.Net. Amateur writers reuse characters, locations and plotlines from commercially successful works (‘textual poaching’) to bring alternative viewpoints and storylines to life. This raises issues in relation to copyright in a digital market. This thesis analyses

(i) what in the underlying work attracts copyright,

(ii) whether fanfiction writers benefit from any of the fair dealing exceptions available within the Copyright Designs and Patents Act (CDPA) 1988, and

(iii) how the Copyright in a Digital Single Market (CDSM) Directive will apply these context-heavy exceptions to websites that host this material.

Most existing literature on the subject has been ethnographic in nature and focused on the media implications of fan activities. While legal research exists, most is doctrinal and based within the US legal system. This thesis adopts a distinctive approach, applying doctrinal and quantitative methods together to test the economic biases within copyright law as applied to certain unauthorised derivative works. It makes several important contributions to knowledge – it suggests that some characters and locations attract individual copyright post-Infopaq; analyses the fair dealing exceptions as they stand in UK law after the recent Pelham/Funke Median cases; suggests a potential test for the as-yet undefined s30A CDPA 1988 pastiche fair dealing exception; and analyses how the CDSM Directive may apply to websites that host fanfiction. Finally, by using a dataset of user posts from the world’s largest online fanfiction archive (Fanfiction.Net) and sales data (Nielsen), this thesis further suggests that Article 17 of the CDSM Directive contains serious misapprehensions regarding culture in the digital age. This research suggests that existing theories of copyright harm are incomplete, and there may be important social incentives and welfare benefits to permitting this type of use.

Item Type:	Thesis (Doctoral)
Faculty \ School:	Faculty of Social Sciences > School of Law
Depositing User:	Chris White
Date Deposited:	11 Aug 2021 08:22
Last Modified:	11 Aug 2021 08:22
URI:	https://ueaeprints.uea.ac.uk/id/eprint/81050
DOI:

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