Buccafusco (2012)

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

Buccafusco (2012)
Title: Making Sense of Intellectual Property Law
Author(s): Buccafusco, C. J.
Year: 2012
Citation: Buccafusco, C. J. (2012). Making Sense of Intellectual Property Law. Cornell Law Review, 97, 501.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: There were three different conditions run with 180 test subjects in total, using mechanical turk (mturk). The contest condition had 60 subjects the publiation condition had 61 and the attribution condition had 59 subjects.
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:
  • 2011
Funder(s):

Abstract

Despite considerable research suggesting that creators value attribution – i.e., being named as the creator of a work – U.S. intellectual property (IP) law does not provide a right to attribution to the vast majority of creators. On the other side of the Atlantic, however, many European countries give creators, at least in their copyright laws, much stronger rights to attribution. At first blush it may seem that the U.S. has gotten it wrong, and the Europeans have made a better policy choice in providing to creators a right that they value. But for reasons we will explain in this Article, matters are a lot more complicated than that.

This Article reports a series of experiments that are the first to attempt to quantitatively measure the value of attribution to creators. In previous research, we have shown that creators of IP are subject to a “creativity effect” that results in them assigning substantially higher value to their works than neoclassical economic theory predicts. The first two experiments reported in this Article suggest a way that the creativity effect may be reduced – creators are willing to sacrifice significant economic payments in favor of receiving attribution for their work. The value to creators of attribution raises the question whether U.S. IP law should be re-structured to provide attribution as a creator’s default right.

The third and most important experiment reported here casts doubt on the value of giving creators such a default right, because creators value attribution differently depending on whether the legal rule gives it to them as an initial entitlement or not. When creators are given a right to attribution as a default they value credit four times higher than when attribution is not the default option. Our findings make clear that creators value attribution, and that the prospect of obtaining it can lead to a more efficient level of transacting. At the same time, and paradoxically, our findings also suggest that before we restructure American law, which provides no right to attribution for the vast majority of creators, we need to take care, because it is possible, under conditions that we will describe, that providing creators with a default right to attribution will result in less efficient transacting.

Finally, our findings have important implications for property theory which are broader than IP law or attribution rights. Our third experiment suggests that a party who enjoys a default legal right as part of her initial complement of rights will tend to treat that legal right in a fashion similar to any other form of initial entitlement, and overvalue it relative to what neoclassical theory would predict. This suggests a principle regarding how to efficiently structure default rules in any setting. All other factors being equal, an efficiently-structured default rule will locate the initial legal entitlement in the party who is either less likely to overvalue the entitlement, or, if overvaluation seems inevitable regardless of where the initial entitlement is placed, is likely to overvalue it less.

Main Results of the Study

  • There was one experiment with three different conditions: 1) Contest, 2) Publication, 3) Attribution.
  • The first condition was the contest condition, where the subjects could sell their rights to win a lottery but keep their property rights.
  • The second condition (publication) was similar to the contest condition but the difference is that the photographer now had the chance to have their photo published, uncredited, if they sold their contest rights and won the lottery.
  • The final condition (attribution) is similar to the publication condition except the photographer would have a credited photo published if they sold their rights to the lottery.
  • The idea being that if the subject had a lower willingness to accept (WTA) an offer then they would be more likely to sell their property rights away, but keep the possibility to publish with or without attribution, depending on the condition. What the authors found was that when the photographer had the potential to publish a photo with attribution their WTA was lower than when there was not a chance to get published with attribution. This result suggests that if authors were not given attribution rights there would be more transactions of artistic works, which would make it a more efficient market.


Policy Implications as Stated By Author

Makes a case for attribution rights not being a part of copyright protection.


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)?
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)
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

Sample size: 60
Level of aggregation: Individual
Period of material under study: 2011


Sample size: 61
Level of aggregation: Individual
Period of material under study: 2011


Sample size: 59
Level of aggregation: Individual
Period of material under study: 2011