Cooper and Burrow (2018)

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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

Cooper and Burrow (2018)
Title: Photographic Copyright and the Intellectual Property Enterprise Court in Historical Perspective
Author(s): Elena Cooper, Sheona Burrow
Year: 2018
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.
Link(s): Open Access
Key Related Studies:
Discipline:
Linked by:
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:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • October 2012 - December 2015
Funder(s):
  • CREATe, Grant Number AH/K000179/1

Abstract

“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.



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)
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