Cooper and Burrow (2018)
|Cooper and Burrow (2018)|
|Title:||Photographic Copyright and the Intellectual Property Enterprise Court in Historical Perspective|
|Author(s):||Elena Cooper, Sheona Burrow|
|Citation:||Cooper, E. and Burrow, S. (2018) Photographic Copyright and the Intellectual Property Enterprise Court in Historical Perspective. CREATe Working Paper Series DOI: 10.5281/zenodo.1246559.|
|Key Related Studies:|
|About the Data|
|Data Description:||The research is comprised of two case studies. The first case study includes an analysis of 21 transcriptions of judgements at the IPEC, constituting all cases brought by photographers (or represenatatives) between 2012 and 2015. The second case study adopts a historical perspective of enforcement practices of photographers during the late nineteenth/early twentieth century.|
|Data Type:||Primary and Secondary data|
|Secondary Data Sources:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||No|
|Government or policy study?:||No|
|Time Period(s) of Collection:||
“This article provides an in-depth case study of the enforcement of copyright in photographs by certain rights-owners today: freelance professional photographers who derive income from the exploitation of photographic copyright. Referring to the theoretical framework of Guido Calabresi and A Douglas Melamed, the article reflects on the implications of the case study for the nature and function of copyright in a specific context today. Bringing the experience today into conversation with the enforcement of copyright by professional photographers in past times (the late nineteenth/early twentieth centuries), the article notes the influence of the bureaucratisation of copyright exploitation (i.e. exploitation through picture libraries) on legal decision making in a particular forum today: the Intellectual Property Enterprise Court Small Claims Track. The article concludes with more general reflections on the case study’s implications for the courts and copyright policy-makers.”
Main Results of the Study
The study finds parallels between modern photographers, and photographers during the late nineteenth/early twentieth century; both groups faced technological changes, and turned to courts to assert their legitimacy and obtain payment for use of their works.
Picture libraries, such as Getty Images, have impacted how damages are calculated by the IPEC. Courts often calculate damages on the basis of a hypothetical licensing fee, had the claimant been a member of a picture library.
Photographer claimants show a preference for remuneration rather than outright objection to the use of their works. Similarly, moral rights claims are likely to be framed in a manner that demonstrates economic impact. The authors perceive this as courts legitimising photographers rights for remuneration, and denying the “culture of free” (e.g. where many of the defendants expressed that images available online are generally understood as free-to-use).
Policy Implications as Stated By Author
The authors highlight two policy concerns: firstly, they query how appropriate it is to use picture library rates as a proxy fee in absence of any agreement between the claimant and defendant. This may artificially extend the remit of picture library contracts, particularly where claimants are non-members. Secondly, where this property based rule is unworkable, this results in a reduction of copyright to a liability rule (e.g. monetary compensation for orphan works usage). Further research is required as to appropriate calculations of remuneration by consultation with rightsholders.