Lecturer in Intellectual Property Law

LLB (Hons), LLM, PhD
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Biography

Smita joined the School of Law as a Lecturer in Intellectual Property Law in September 2008. She is also an associate of SCRIPT: the AHRC Research Centre for Studies in Intellectual Property and Technology Law.

Smita completed her LLB (Hons) from University of Buckingham, LLM from the University of Cambridge and also gained legal experience as a practising advocate, in Corporate and commercial law, in the High Court at Calcutta. She undertook her PhD at Queen's University Belfast, where for her doctoral research she took a socio-legal approach to examine authors' rights under copyright legislation and conducted a qualitative study exploring the perspective of digital artists as to the concept of authorship and their use of present copyright legislation.

Her research interests include applicability of empirical research, particularly socio-legal methodologies in addressing questions on copyright law and policy as to new types of creative content and exploring connections between Intellectual property law and new forms of property and culture through perspectives of creators and users.

In 2012, she was Co-Investigator on the project "Creation and Publication of the Digital Manual" (a six month project funded by the AHRC under its Digital Transformations in Arts and Humanities Theme). More details can be found at: https://sites.eca.ed.ac.uk/digital-manual/

Smita is a member of CREATe (Centre for Creativity, Regulation, Enterprise & Technology) and  Lead Investigator on two CREATe projects. The first project is aimed at investigating the role of copyright in day to day creative practice and resulting business models of individual creators. The second project will explore the relationship between copyright, creators' organisations and business models. More details can be found at: http://blogs.sps.ed.ac.uk/copyrightandcreators/

She is also Co-Investigator on an AHRC funded project which is evaluating the copyright challenges faced by arts and humanities researchers as they seek to develop and make available publicly funded research content. More details can be found at: http://ahrccopyrightproject.wordpress.com/

Smita is Supervising editor (Intellectual Property) for SCRIPT-ed: A journal of Law, Technology & Society and is also on the editorial advisory board of The IP Law Book Review. She is a co-convener of the Empirical Legal Research Network. She is also a member of Creative Interdisciplinary Research in Collaborative Environments (CIRCLE).

Smita teaches on a number of Intellectual Property law courses (including specialist courses on copyright and related rights and law and society perspectives on Intellectual Property) and also contributes to courses outside the School of Law. She is also the Programme Director for the on-campus LLM in Intellectual Property Law, details of which are available here.

Smita welcomes proposals for postgraduate research in the area of copyright and related rights. She is also interested in projects that use empirical methodologies to study issues in Intellectual Property Law.

Courses Taught

Commercial Law (Ordinary)

Copyright and Creative Industries (Others) (Course Organiser)

PhD Supervisees

Evgenia Kanellopoulou  'New Business Models for the Music Industries: the new role of Copyright in Relevant Markets for music'

Nevena Kostova  'The Relationship between Copyright, Creators' Organisations and Business Models'

Books

Graeme Laurie, Smita Kheria, Jane Cornwell, Charlotte Waelde, Abbe Brown Contemporary Intellectual Property: Law and Policy 3rd edn (Oxford University Press, 2013)

Journal Articles

Gillian Black, Rachael Craufurd Smith, Smita Kheria, Gerard Porter 'Scotland the Brand - Marketing the Myth?' (2015) Scottish Affairs 47-77

Smita Kheria 'Copyright and Digital Art Practice: The 'Schizophrenic' Position of the Digital Artist' (2013) Leonardo Electronic Almanac Vol 19 Issue 4
Abstract: What is the role of copyright in the everyday social context of new, emerging and 'born digital' artistic activities? Is copyright able to govern the practical behaviour of artists and creative practitioners? If not, then what or who impacts on their behaviour? This paper focuses on the interaction of copyright with the everyday life of creators working in the digital environment and discusses their 'schizophrenic' position. It draws upon a qualitative empirical study with digital artists aimed at exploring their perceptions of copyright law: how they understand and manage copyright and how copyright interacts with the local circumstances of their day to day creative practice. A finding of this study was that some of the artists faced moral dilemmas and were pulled in different directions with respect to their perspectives and decisions regarding copyright. The consequence of this was a seemingly 'schizophrenic' position, one that manifested in various ways: in wanting to emphasize that 'copying' cannot and should not be controlled in the digital medium but equally feeling compelled to have some control; in wanting to reject the prevention of copying in the digital domain while relying on exclusivity of copies in the analogue domain; in wanting to deny the applicability of traditional notions of authorship to their practice while asserting the importance of attribution. http://www.leoalmanac.org/vol19-no4-without-sin/

Chapters

Smita Kheria, Daithi Mac Sithigh, Judith Rauhofer, Burkhard Schafer '(Mis)appropriation Art? Copyright and Data Protection implications of "CCTV Sniffing" as Art' in E. Schweighofer, F. Kummer, W. Hötzendorfer (eds) Abstraktion und Applikation (OCG, 2013) 489-498

Working Papers

Smita Kheria, Charlotte Waelde, Nadine Levin, 'Copyright and Publicly-Funded Arts and Humanities Research: Identifying and Developing Sustainable Exploitation Models in the Digital Economy', Edinburgh Law School Working Paper Series (SSRN, 2015) [Download]
Abstract: In this paper, we report our findings from a pilot project, where we examined the relationships between copyright, publicly funded arts and humanities research, and research processes in the digital era. Our examination was based on case studies of six different AHRC-funded projects: three funded under the Digital Transformations theme, and three funded by one of the Knowledge Exchange Hubs for the Creative Economy, Research and Enterprise in the Arts and Creative Technologies (REACT). To study the six cases, we conducted semi-structured interviews with selected participants from each of these funded projects. We used this empirical data to address the following research questions: (1) How do researchers engage with copyright during the research process and in the production of creative works, and what copyright related challenges emerge? (2) How is researchers' engagement with copyright affected by digitisation, collaboration, legislation, and government policies? (3) Does copyright provide benefits to researchers as they undertake publicly funded research? (4) What range of works is produced during research, what do researchers identify to be of value in their projects, and can any of the benefits provided by copyright be mapped onto these values?

Smita Kheria 'Copyright and Digital Art: Through the Looking Glass', Edinburgh Law School Working Paper Series (SSRN, 2012) [Download]
Abstract: This chapter explores the interaction between copyright and everyday life of artists in the digital environment. It focuses on the role of copyright in the every day context of a specific creative activity: digital art practice. It draws upon findings from a qualitative empirical study consisting of first-hand accounts from digital artists on their perspective and practice on matters such as creation, dissemination and exploitation of their artworks. The chapter provides a flavour of the life that copyright law and policy take, in ways which contrast with their own purpose, because of the various connections and complexities between the digital artist and other actors in an artistic practice. It emphasises that understandings of 'copyright in action' in new creative activities in the digital environment, particularly through the creators' perspective, can offer valuable insights for policy making.

Papers and Presentations

Smita Kheria 'Life on other Worlds: Creators and Copyright' presented at GikII, Berlin, 2015 [Download]
Abstract: Copyright has increasingly been subjected to public debate. Two weeks before the last UK general election, the Green Party, unwittingly, brought copyright to the attention of certain members of the electorate. On 23 April 2015, several newspapers reported that authors and illustrators were shocked and alarmed with the party's policy to "introduce generally shorter copyright terms, with a usual maximum of 14 years". After some confusion, as to what the party meant by the policy (14 years after publishing or 14 years after the death of the author), Caroline Lucas admitted that the party had 'got it wrong' and had agreed to review its policy on copyright. More interestingly, the scrutiny over the policy had originated in discussions amongst illustrators and writers on social media and continued in these forums after traditional news media coverage ended. In these discussions, where the duration of copyright protection simply became a launch pad for a debate on the role of copyright, there were attacks on creators (that suggested they should do some 'real work' to earn a living), misunderstandings and misgivings about how copyright functions, and much trolling. These social media discussions served to highlight the bewilderment and frustration of many creators as to the general lack of understanding about the role of copyright from their point of view and, how they make a living. Some may consider this surprising, since the creative industries have been accused of aggressively justifying the role and importance of copyright. But it suggests that voices and perspectives of individual creators on copyright may not have been adequately reflected. It might then be useful to ask: what is the role of copyright in the day to day practice of creative practitioners, and how is it changing? What is the actual as well as perceived value of copyright from the creators' point of view? How are meanings and beliefs regarding copyright being shaped and how do such meanings, beliefs, and experiences regarding copyright ultimately shape the various contours of creators' practices? This paper will present emergent themes from an ongoing project, titled 'Individual Creators' and funded by CREATe, which is investigating the interaction between copyright and the everyday life of creative practitioners. As part of the project, over 100 semi-structured interviews with a selection of writers, illustrators, and visual artists have been conducted in conjunction with observations at festivals and events and, collection of secondary data from social media sites such as Facebook and Twitter. This paper will focus on early findings emerging from interview and secondary data pertaining to the 'other worlds' of writers and illustrators.

Smita Kheria 'Creators and copyright: Voices from the field' presented at Friction and Fiction: IP, Copyright and Digital Futures, Victoria & Albert Museum, London, 2015

Smita Kheria 'Copyright and Individual Creators: Preliminary Findings From an Empirical Study' presented at Law and Society Association Annual Meeting, Seattle, USA, 2015
Abstract: This paper will present preliminary findings from an ongoing project that is investigating the interaction between copyright and the everyday life of creative practitioners. The thematic focus of the project is on the role of copyright in the day to day creative practice, and resulting economic models, of individual creators in a number of creative sectors. As part of the project, new empirical research has been conducted to understand the changing economic and social contexts of certain creative practices as well as the individual creators' perspectives and experiences in relation to copyright. Interviews with a range of writers, contemporary artists and performers have been conducted. Interviewees were contacted through literary events and arts festivals, venues and hubs that showcase creative works, and through snowball sampling. Some of the questions explored in the interviews were: How did copyright law and policy interact with the production, creation and dissemination of the interviewees' creative works? What were the value chains in their creative practice? How were the values exploited and why? What role, if any, was played by copyright in such value chains? How did copyright compare to the other values or intellectual assets in their practice? This paper will describe some of the key themes that are emerging from the interview data and in particular, discuss the perceived economic and non-economic value of copyright as identified by interviewees.

Smita Kheria 'Copyright and Digital Media Art' presented at ISEA, The 20th International Symposium on Electronic Art, Dubai, 2014

Jane Cornwell, Smita Kheria 'Methodological Challenges in Empirical Research on Copyright' presented at University of Edinburgh Empirical Legal Research Network seminar, 2014

Smita Kheria 'Copyright and Business Models: An Empirical Study with Individual Creators' presented at Law and Society Association International Meeting, Boston, 2013

Smita Kheria 'Copyright, authorship and ownership in digital co-creative practices' presented at Digital scholarship: day of ideas 2, Edinburgh, 2013
Abstract: In some of the emerging co-creative practices in the digital domain, a number of actors routinely co-create, co-curate, and co-consume digital resources and content not just to use and manipulate digital technologies but also for creative expression and knowledge making. Collaborative authorship does not sit very well within the current copyright framework and this talk will discuss some of the challenges to notions of authorship and ownership raised by such co-creative practices.

Smita Kheria 'Copyright, authorship and ownership: A scoping study on emerging co-creative practices' presented at SLSA Annual Conference, York, 2013

Smita Kheria 'The Digital Manual' presented at Remediating the Social, Edinburgh, 2012
Abstract: An audio visual recording of the conference presentation is available at the following link: http://bambuser.com/channel/ELMCIP

Smita Kheria, Penny Travlou 'Creation and Publication of the "Digital Manual": Authority, Authorship and Voice' presented at P{e/a}r{i/a}meter CIRCLE research symposium, University of Edinburgh, 2012
Abstract: In this paper we will present our AHRC Digital Transformations Programme funded project. This project defines the Digital Manual as a model of emergent multi-authored publication employing open source and co-creative practices. The key aim of the project is the development of a multi-disciplinary research network of experts on the topic (academics, practitioners and artists) that, first, interacts on the issues surrounding creation and publication of the Digital Manual during the six month period of the project and, second, is charged with a generative role in determining related research questions and activities thereafter with a view to seeking a longer and larger grant to explore those questions. The development of such a research network is aided and informed by a scoping study of four open source creative communities and a research workshop in early July.

Smita Kheria, Jane Cornwell 'Some reflections on experiences with innovative assessment' presented at 5th EIPTN annual workshop, Charles University, Prague, 2011
Abstract: Recent years have seen increasing emphasis on developing innovative assessment models in higher education. This presentation will discuss 3 case studies demonstrating use of innovative assessment in IP at Masters level: a poster exercise; a draft consultation response; and an ongoing wiki case study. We will outline positive experiences showing how these support student learning by complementing traditional methods of assessment and promoting a range of 'real-world' skills such as communication, problem-solving, collaborating, advising, advocacy and appreciation of legal issues in a policy context. We will also reflect on challenges in setting instructions, applying assessment criteria and addressing student expectations. http://www.eiptn.org/Prague/Presentations/Kheria%20&%20Cornwell.pdf

Smita Kheria 'Copyright and Digital Art: Through the Looking Glass' presented at Conference on Law and Society Perspectives on Intellectual Property Law and Policy, Golden Gate University School of Law, San Francisco, 2011

Smita Kheria 'Perspectives of Digital Artists on Copyright' presented at 8th Annual International Conference on Law, Athens Institute for Education and Research (AT.IN.E.R.), Athens, Greece, 2011

Smita Kheria 'Copyright and Digital Art: Taking forward a study with individual creators' presented at SLSA Annual Conference, Sussex University, 2011
Abstract: Copyright law has faced considerable challenges, both conceptual and practical, from the onslaught of digital technologies and consequently been strengthened. The digital environment enables creation of not only many different types of creative works in which copyright may or may not subsist, but also facilitates their creation, dissemination and experience in very diverse contexts and manifestations in different forms, both of which are continually growing in number. One of such contexts is digital art practice. This paper focuses on the interaction of copyright with the everyday life of creators and draws upon the findings of my earlier research, where I used first hand accounts from digital artists to explore what copyright law means in the local context of their creative practice based in the digital environment. It questions and explores possible routes of taking such findings forward, including investigating the emerging and prevalent business models in the area of new media art and the role played by copyright law in such models.

Smita Kheria 'Panel member on the Special Plenary Panel - The Past, Present and Future of Socio-Legal Studies: Celebrating 21 years of the SLSA' presented at SLSA Annual Conference, Sussex University, 2011
Abstract: http://www.slsa.ac.uk/content/view/288/327/

Smita Kheria 'Moral Rights and New Technologies' presented at The Indian Society of International Law, New Delhi, 2010

Smita Kheria 'Creativity and Copyright in the Digital Environment: the 'schizophrenic' position of the individual artist' presented at Law and Society Association International Meeting, Chicago, 2010
Abstract: The digital environment enables creation of not only many different types of creative works in which copyright may or may not subsist, but also facilitates their creation, dissemination and experience in very diverse contexts and manifestations in different forms, both of which are continually growing in number. The creative industries in this backdrop are being viewed as key economic players by the government. Individual creators form an equally important part of the same as the small and big firms and cultural institutions. This paper focuses on the individual creator and explores the relationship between creativity and copyright in an artistic practice based in the digital environment. In particular, it presents some case studies and through them examines how creativity and copyright (both in its theoretical underpinnings and practical form) enable and disable each other in the day to day practice of the artist; and investigates how artists cope with such a schizophrenic position.

Smita Kheria 'Role of Artistic Motivation for Copyright Policy' presented at Socio-legal Studies Association Annual Conference, Leicester, De Montfort Law School, 2009
Abstract: Copyright protection has been justified on different grounds but monetary incentive based theories have played an important role in copyright policy in the Anglo American jurisdictions. From the Statute of Anne to the recent Gowers Review of Intellectual Property in the UK the incentive-analysis has only strengthened its grip as a justification. For legal purposes, the main criticism for such utilitarian argument is whether such incentive is necessary at all. This paper will explore this criticism through the application of the incentive analysis, so far as it bites at the point of creation, both in an analog context and in the digital environment. In this respect the key sub-questions - does copyright protection in fact create an incentive for production and whether creative production would continue without such incentive will be analyzed. An additional important question, whether copyright protection can provide an incentive" will be posed and the role of artistic motivation on such issue which has been largely under recognized will be explored. This analysis will be done using existing literature from law, economics and sociology and findings from an empirical study conducted with artists working in the digital environment.

Smita Kheria 'Copyright Law in the Digital Environment: Findings from a Study with Digital Artists' presented at Law and Society Association International Meeting, Denver, 2009
Abstract: Copyright law emerged with the advent of the printing press of mass type and has evolved as newer technologies have emerged. Today it faces considerable challenges, both conceptual and practical, from the onslaught of digital technologies. The legal discourse on such challenges has been primarily theoretical and examined through the lens of technology, history and economics. But any input from the key human player, the author, has remained mostly absent from this discourse. This paper presents the key findings from the author's doctoral research project which takes as it starting point the inclusion of this human element in the discourse by employing socio-legal methodology. The objective of the research was to understand the artists' perception of present copyright law and it's role in their creative practice. As part of the research, a qualitative empirical study was conducted with digital artists based in UK and Ireland. The study uncovered interpretations of the artists as to key concepts in copyright law like author, work and relationship of author with the work; and their motivations and experiences in protecting their work. The findings were then used to take a fresh look at the conceptual challenges faced by copyright and related rights in the digital environment.

Smita Kheria 'Participant on the Visual arts and Film panel' presented at Symposium on Copyright, Contracts and Creativity, Bournemouth University, 2009
Abstract: http://www.cippm.org.uk/symposia/symposium-2009.html

Smita Kheria 'Methodological Issues in conducting Interviews with Artists' presented at Law and Society Association International Meeting, Montreal, 2008
Abstract: Digital technology brought 'authors' opportunities for creativity like never before but also posed important hurdles for the doctrines of copyright and moral rights. It prompted legislative developments at international level to strengthen existing copyright law in favour of right holders, while moral rights remained acknowledged but ignored; and also led to an extensive theoretical debate in the academic world, which continues till today. The focus in both legislative developments and academic literature has remained around technical issues of digitization, concerns of businesses and economic efficiency, effects on cultural and social aspects of society and balance between private rights and larger public interest. Remarkably, there aren't sufficient empirical studies to back such claims. More importantly, despite the excuse of "protection of authors" being used to bring in legislative changes and "nature of authorship" being discussed widely in the literature, the voices of the "authors" remain absent. Both, the strong need for empirical research in this area and the potential for such studies to make a significant contribution to existing theoretical knowledge have been pointed out but remain unaddressed. This paper first outlines the studies carried out in the UK in the last decade involving artists or addressing their perspective in relation to the copyright issues as outlined above. It summarizes the nature and objectives of the same and also points out how such empirical studies remain few and far between. Second, the paper examines the methodological issues in designing and conducting a study involving interviews with artists drawing on insights derived from a qualitative research on the perspective of digital artists in the UK and Ireland, on the process of creation and the laws protecting authors in the digital environment. It describes methodological issues relating to data collection like sampling, access, mode of interview and overall study design. The paper also goes on to make some recommendations for conducting qualitative interviews with this sample group.

Smita Kheria 'Artists and Empirical Research in Copyright Law' presented at Quest, QUB AHSS post graduate conference, Belfast, 2008

Smita Kheria 'Consultation with Artists and Copyright law: A UK perspective' presented at Socio-Legal Studies Association Annual Conference, University of Manchester, 2008
Abstract: This paper outlines the position of artists' contribution to formulation of copyright laws in the UK. Digital technology brought `authors' opportunities for creativity like never before but also posed important hurdles for the doctrines of copyright and moral rights. It prompted legislative developments at international level to strengthen existing copyright law in favour of right holders, while moral rights remained acknowledged but ignored; and also led to an extensive theoretical debate in the academic world, which continues till today. The focus in both legislative developments and academic literature has remained around technical issues of digitization, concerns of businesses and economic efficiency, effects on cultural and social aspects of society and balance between private rights and larger public interest. Remarkably, there aren't sufficient empirical studies to back such claims. More importantly, despite the excuse of "protection of authors" being used to bring in legislative changes and "nature of authorship" being discussed widely in the literature, the voices of the "authors" remain absent. Both, the strong need for empirical research in this area and the potential for such studies to make a significant contribution to existing theoretical knowledge have been pointed out but remain unaddressed. This paper first outlines the studies carried out in the UK in the last decade involving artists or addressing their perspective in relation to the copyright and related rights as outlined above. It summarizes the nature and objectives of the same and also points out how such empirical studies remain few and far between. Second, the paper also outlines the contribution of and representation from artists to the major government consultations on copyright and related laws in the UK.

Smita Kheria ''Authorship' missing in the debate on moral rights in the digital age' presented at Socio-Legal Studies Association Annual Conference, University of Kent, 2007

Smita Kheria 'Moral rights in the Digital Environment: "Authors" absence from Authors' rights debate' presented at BILETA annual conference, Hertfordshire, 2007
Abstract: This paper examines the arguments put forward in the debate on protecting moral rights in the digital environment. In identifying the themes occupying the debate, it seeks to highlight and illustrate the issues overlooked therein. Specifically it points out how the 'authors' perspective' has remained significantly absent, underrepresented or ignored in the debate. The paper then goes on to address the desirability of including authors' perspective to the debate in giving credibility to the arguments already put forward and generating newer themes to take the debate a step further and the importance and applicability of socio-legal approach in achieving the same. http://www.bileta.ac.uk/content/files/conference%20papers/2007/Moral%20rights%20in%20the%20Digital%20Environment%20-%20%27Authors%27%20absence%20from%20Authors%27%20rights%20debate.pdf

Smita Kheria 'Authorship and the debate on Moral rights in the digital environment' presented at Law and Society Association International Meeting, Berlin, 2007