Beebe (2008)

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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

Beebe (2008)
Title: An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005
Author(s): Beebe
Year: 2008
Citation: Beebe, B. (2008). An empirical study of US copyright fair use opinions, 1978-2005. University of Pennsylvania Law Review, 549-624.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by: Cotropia and Gibson (2014), Gerhardt (2014), Lippman (2013), Liu (2019), Netanel (2011), Sag (2012), Sag (2017), Schuster, Mitchell and Brown (2018)
About the Data
Data Description: A data set consisting of all reported federal opinions that made substantial use of the section 107 four-factor test from the January 1, 1978, effective date of the Copyright Act through 2005.
Data Type: Secondary 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:
  • 1978 to 2005
Funder(s):

Abstract

Section 107 of the Copyright Act of 1976 establishes the affirmative defense to copyright infringement of “fair use,” by far the most enigmatic doctrine in U.S. copyright law and by far the most important. Without it, much of our economic and communicative action would constitute copyright infringement. Yet despite the importance of the fair use defense, and despite the enormous amount of scholarly attention that it has received, we continue to lack any systematic, comprehensive account of our fair use case law and the actual state of our fair use doctrine. Instead, our conventional wisdom derives from a small set of conventionally agreed-upon leading cases. This Article presents the results of the first empirical study of our fair use case law to show that much of our conventional wisdom about that case law is mistaken. Working from a data set consisting of all reported federal opinions that made substantial use of the section 107 four-factor test for fair use through 2005, the Article shows which factors and subfactors actually drive the outcome of the fair use test in practice, how the fair use factors interact, how courts inflect certain individual factors, and the extent to which judges stampede the factor outcomes to conform to the overall test outcome. It also presents empirical evidence of the extent to which lower courts either deliberately ignored or were ignorant of fair use doctrine set forth in the leading cases, particularly those from the Supreme Court. Based on these descriptive findings, the Article prescribes a set of doctrinal practices that will improve courts’ adjudication of the fair use defense.

Main Results of the Study

- Between 1976 and 2005, federal courts reported 306 opinions, 215 of which made substantial use the four factors of s. 107, which the author notes is a surprisingly small number.

- The Second and Ninth Circuit reported the highest number of cases and heavily influence other circuits even though the decisions are not directly precedential.

- The outcome of the case is heavily driven by the fourth factor (commercial use/effect on potential market) and less strongly driven by the first factor (purpose and character). Factor two (nature of copyrighted work) has no significant impact on outcome. Factor three (amount and substantiality taken) has minimal impact.

- The influence of other factors outside of s. 107, such as publication or bad faith, are also discussed as affecting outcome.

- Judicial decisions have consistently expanded the scope of the fair use defence.

Policy Implications as Stated By Author

More consistent and correct application of fair use law; transparency; certainty.


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)
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)
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: 107
Level of aggregation: Federal Judgement Opinions
Period of material under study: 1978 to 2005