Balganesh, Manta and Wilkinson-Ryan (2014)

From Copyright EVIDENCE

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

Balganesh, Manta and Wilkinson-Ryan (2014)
Title: Judging similarity
Author(s): Balganesh, S., Manta, I., Wilkinson-Ryan, T.
Year: 2014
Citation: Balganesh, S., Manta, I., & Wilkinson-Ryan, T. (2014). Judging similarity. 100 Iowa Law Review 267; University of Pennsylvania Law School, Public Law Research Paper No. 14-15; Hofstra Univ. Legal Studies Research Paper No. 2014-09. Available at SSRN 2409811.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
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About the Data
Data Description: Two separate surveys; 152 partcipated in the first one and 493 individuals participated in the second one. Participants were found using the Amazon Turk service.
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:
  • 2014
Funder(s):
  • Not stated

Abstract

Copyright law’s requirement of substantial similarity requires a court to satisfy itself that a defendant’s copying, even when shown to exist as a factual matter, is quantitatively and qualitatively enough to render it actionable as infringement. By the time a jury reaches the question of substantial similarity, however, the court has usually heard and analyzed a good deal of evidence: about the plaintiff, the defendant, the creativity involved, the process through which the work was created, the reasons for which the work was produced, the defendant’s own creative efforts and behavior, and on occasion the market effects of the defendant’s copying. Despite having this large body of evidence before it, the jury is required to answer the question of substantial similarity through a mere comparison of the two works. In this Essay, we report results from a series of experiments in which subjects were presented with a pair of images and asked to assess the similarity between the two works using the criteria ordinarily given to fact-finders for the substantial similarity determination. When provided with additional information about the simple fact of copying, or about the amount of creative effort that went into the protected work, we saw an appreciable variation (i.e., upwards) in subjects’ assessments of similarity between the works, suggesting that fact-finders are sensitive to additional information about the two works and the creators who produced them, contrary to what current law assumes. Our study suggests that the availability and salience of such additional information actively distorts fact-finders' assessments of the similarity between the two works, calling into question the purported objectivity of the substantial similarity requirement as a whole.

Main Results of the Study

  • Basic knowledge about the act of copying, meaning that one work was copied from the other, greatly influences individuals’ assessments of similarity. And since substantial similarity is presented as a question to the jury once copying as a factual matter is shown to exist, the substantial similarity question is structurally skewed in favor of a jury’s finding greater—i.e., substantial—similarity between the two works.
  • In addition to simple knowledge about the copying, additional information about the creator’s efforts in producing the work also triggers individuals’ intuitions that cause them to find a greater amount of similarity between two works.
  • Our study leads us to conclude that while it may be true as a matter of theory that liability for copyright infringement is indeed “strict,” in practice this is perhaps largely untrue, since decision-makers are indeed “judging” the defendant’s actions in assessing similarity. Given this reality, it is perhaps time for copyright law to reconsider its dogmatic adherence to a model of strict liability—in both theory and practice.


Policy Implications as Stated By Author

Since decision-makers are indeed “judging” the defendant’s actions in assessing similarity, it is perhaps time for copyright law to reconsider its dogmatic adherence to a model of strict liability—in both theory and practice.

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)?
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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)
Green-tick.png
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)
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)
Green-tick.png

Datasets

Sample size: 152
Level of aggregation: Individual
Period of material under study: 2014


Sample size: 493
Level of aggregation: Individual
Period of material under study: 2014