Gerhardt (2014)

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Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Gerhardt (2014)
Title: Copyright at the Museum: Using the Publication Doctrine to Free Art and History
Author(s): Gerhardt, D.
Year: 2014
Citation: Gerhardt, D. R. (2014). Copyright at the Museum: Using the Publication Doctrine to Free Art and History. Available at SSRN 2505041.
Link(s): Open Access
Key Related Studies:
Discipline:
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About the Data
Data Description: The empirical dataset consists of 446 federal copyright publication opinions decided before 2011.
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • Not stated
Funder(s):
  • Not stated

Abstract

This Article is the first to use the copyright publication doctrine to clarify whether art, photographs, films, and historical documents that fill our museums and libraries are in the public domain. Knowing whether a photo, painting, film, or original letter was published is critically important to anyone who wants to use it today. Before 1989, publishing a work with no copyright notice dedicated the work to the public domain. Unpublished works without a notice are likely protected by copyright, and their unauthorized use can result in severe federal penalties. Unfortunately, the meaning of “publication” in copyright law is notoriously ambiguous. The federal statutory definition suggests that works “made available” to the public are published, while leading treatises generally assume that works given to public museums and libraries are unpublished. Confronted with this uncertainty, risk averse institutions too often assume that archived works are protected by copyright. Misunderstanding the law can keep cultural treasures locked in dark archives, vaults and basements, preventing their use as a foundation for new expression and distorting our sense of history.

This Article critically examines mistaken assumptions about copyright publication. It finds that neither the statutory definition nor leading treatises adequately identify when a work is published. A better standard for determining when a work is published and in the public domain is needed to free works from being locked up by copyright uncertainty. The best solution would clarify the boundaries of a stable public domain. In a recent decision, the Supreme Court took a wrong turn in dismissing the importance of the public domain. Knowing what content may be freely used is critical to preserving First Amendment values and freeing cultural treasures from copyright’s bondage. The copyright ambiguity of archived works should be resolved in a way that honors the expressive and historical value of the public domain. After considering several alternatives, this Article shows how precedential patterns point to the best solution to the publication ambiguity. Drawing on empirical analysis of federal cases interpreting copyright publication, I identify the variables that are most important in determining whether archived works are published. The suggested solution focuses on copyright owner intent and the availability of authorized copies. Other factors described as significant in leading treatises — such as the type of work or archive — actually mask these two fundamental inquiries. The proposed standard provides a much needed solution to clarify which pieces of our cultural heritage are in the public domain and freely available as raw materials for educational sharing, expressive work, historical research, and public discourse.

Main Results of the Study

  • In the six categories of text, 2D art, 3D art, music, film and all, district courts found works to be published 71% of the time.
  • With visual art, courts often found publication. In eight of the ten categories (photograph, painting, drawing, print, audiovisual work, sculpture fine art, sculpture, fabric design, architectural work, and map), publication findings exceeded the 71% average. Six categories (photographs, drawings, prints, sculpture, fabric design, and maps) exceed the average by more than 10 percentage points. The two lowest categories (audiovisual works at 45% and architectural works at 46%) were found to be published much less frequently.
  • The presence of authorized copies is the one variable that significantly increases (by 28%) the probability of finding publication.
  • With publication by deposit in archives, 64% of courts found works to be unpublished.
  • Although the copyright statute defines publication to include “rental, lease or lending,” the regression analysis revealed that courts were less likely to find a work published when they reported these distributions. In the 51 district court opinions addressing such works, courts found publication 47% of the time (well below the 71% average).

Policy Implications as Stated By Author

  • The optimal solution is as follows: a work will be deemed “published” under copyright law if it was placed in a public archive by the copyright owner, and the archive did not impose copying restrictions. Publication before January 1, 1978 would establish public domain status for U.S. works not marked with a valid copyright notice.
  • Such a solution would enable museums, libraries, publishers, authors, filmmakers, and artists to rely on a clear test to determine the copyright status of many archived works. It would increase public access to works now obscured by an ambiguous copyright posture.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Green-tick.png
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size: 446
Level of aggregation: judicial opinion
Period of material under study: The empirical dataset consists of 446 federal copyright publication opinions decided before 2011.