Buccafusco and Masur (2013)

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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

Buccafusco and Masur (2013)
Title: Innovation and Incarceration: An Economic Analysis of Criminal Intellectual Property Law
Author(s): Christopher Buccafusco and Jonathan S Masur
Year: 2013
Citation: Buccafusco, Christopher, and Jonathan S. Masur. Innovation and Incarceration: An Economic Analysis of Criminal Intellectual Property Law. S. Cal. L. Rev. 87 (2013): 275.
Link(s): Definitive , Open Access
Key Related Studies:
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About the Data
Data Description: This study compares two systems of copyright enforcement, one with high level of enforcement and the criminalisation of infringement, and one with low enforcement. The study also compares the treatment of patent enforcement compared to copyright enforcement. Using this comparison the authors then analyse the resulting effects on social welfare.
Data Type: Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: Yes
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • 2004 to 2011
Funder(s):

Abstract

The scope and enforcement of intellectual property (IP) laws are becoming salient, for the first time, to a wide cohort of U.S. and international communities. National and international legislation, including the Stop Online Piracy Act (SOPA), the PROTECT IP Act (PIPA), and the Anti-Counterfeiting Trade Agreement (ACTA), have generated protests online and in the streets by people who are concerned about the expansion of IP rights. Common to each of these proposals was an expansion in the use of criminal sanctions to deter IP violations. Many copyright owners and the associations that represent them support criminal enforcement of IP, including the use of imprisonment, to combat the threat of increased IP piracy on the internet and throughout a globalized economy. Others, including a heterogeneous coalition of scholars, activists, and internet based companies like Google and Wikipedia, fear that using criminal sanctions to protect IP will expand already overgrown rights and chill valuable expressive and inventive behavior.

Main Results of the Study

Scholars and stakeholders have been wrong to assume that criminal sanctions for IP infringement are justified on economic grounds. It is true that criminal sanctions could play an important role in preventing harmful behavior that cannot be deterred through other means. But imposing criminal sanctions is costly. For patent infringement, the costs of imposing criminal sanctions are very unlikely to exceed its benefits. Civil sanctions will probably be sufficient for creating the optimal amount of infringing behavior. For copyright infringement, civil sanctions alone should be sufficient to deter nearly all types of harmful conduct. There is an economic case for imposing criminal sanctions for copyright infringement only with respect to a discrete set of activities: massive reproduction and sales of commercially valuable works. We have arrived at the conclusion that the case for criminal IP sanctions is weak or nonexistent while putting to one side both noneconomic considerations, such as moral or deontological objections to criminal IP sanctions, and economic concerns about the efficacy of IP in promoting innovation. Once those considerations are added to the calculus, we suspect that the argument for criminal sanctions for IP infringement will disintegrate almost entirely.

Policy Implications as Stated By Author

Many IP stakeholders and scholars have operated under the assumption that there is an economic case for criminal IP sanctions. Criminal sanctions for IP infringement are thought to be justified by the possibility of deterring or incapacitating would-be infringers. When criminal IP sanctions have been criticized, the criticism has usually come from a normative position outside of economics-moral rights, for instance." The economic case for criminal sanctions is usually treated as unassailable. We do not believe that the case for criminal sanctions in IP is nearly as strong as many have treated it. Indeed, we will argue that criminal liability may be justified only in one small corner of IP law, in response to one discrete type of infringement.


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)
Green-tick.png
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)
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: 2
Level of aggregation: Copyright enforcement systems
Period of material under study: 2004 to 2011