Tor and Oliar (2002)

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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

Tor and Oliar (2002)
Title: Incentives to Create Under a Lifetime-Plus-Years Copyright Duration: Lessons from a Behavioral Economic Analysis for Eldered v. Ashcroft
Author(s): Tor, A., Oliar, D.
Year: 2002
Citation: Tor, A., & Oliar, D. (2002). Incentives to Create Under a Lifetime-Plus-Years Copyright Duration: Lessons from a Behavioral Economic Analysis for Eldered v. Ashcroft. Loy. LAL Rev., 36, 437.
Link(s): Definitive , Open Access
Key Related Studies:
  • Tor and Oliar (2002)
Discipline:
Linked by: Tor and Oliar (2002)
About the Data
Data Description: Participants in the study rated how attractive they found two alternative streams of future payments, assuming the life expectancy for individuals of their sex and age were to live another forty-five years.

The details of the study are reported elsewhere, as part of a larger study. (Avishalom Tor & Dotan Oliar, Introducing a Behavioral Approach to Copyright Law: Behavioral Economic Analysis and Experimental Tests of Alternative Duration Regimes (May 10, 2002))

Data Type: Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
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Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • Not stated
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Abstract

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their subadditive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased incentives to individual authors is socially desirable, a lifetime-plus-years rule is a more effective legal means of accomplishing this goal than a rule based on a fixed term of years of a comparable expected duration.

Main Results of the Study

  • The behavioral efficacy of a lifetime-plus-years regime does not apply to the Copyright Term Extension Act (CTEA), which merely extends the years component of an already existing lifetime-plus-years rule.
  • Drawing on empirical findings on intertemporal choice, as well as our preceding analysis of the lifetime-plus-years regime and our own experimental tests, we determine that the CTEA's prospective extension provides negligible additional incentives to individual authors.
  • The extension is unjustified on incentive-provision grounds, a finding of relevance to the Court's determination in Eldred v. Ashcroft of the constitutionality of the CTEA under the Copyright Clause.

Policy Implications as Stated By Author

We hope our analysis will alert legal scholars who study those numerous constitutional doctrines that seek to impact individuals' conduct, to the important, yet unexplored, role that behavioral insights can and should play in these constitutional domains.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Green-tick.png
Harmony of interest assumption between authors and publishers (creators and producers/investors)
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)
Green-tick.png
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
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)
Green-tick.png
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets