Depoorter and Walker (2013)

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

Depoorter and Walker (2013)
Title: Copyright False Positives
Author(s): Ben Depoorter, Robert Walker
Year: 2013
Citation: Depoorter, B. and Walker, R.K., 2013. Copyright false positives.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: This article uses data from 42 US Cases
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:
  • 1984 to 2013
Funder(s):

Abstract

Copyright enforcement is riddled with false positives. A false positive occurs when enforcement actions are taken against uses that are not actual infringements. Far from benign occurrences, copyright false positives inflict significant social harm in the form of increased litigation and transaction costs, distortions of licensing markets through rent-seeking behavior, increased piracy due to diminished public adherence with copyright law, and the systemic erosion of free speech rights and the public domain.

To combat this problem, this Article analyzes the causes that give rise to false positives, as well as their legal and social effects, and offers policy recommendations targeted at mitigating the damage of false positives. These policy recommendations include heightening the registration requirements to include a substantive review of all copyright claims; the promulgation of regulations dictating that copyright registrations be periodically renewed; and revision to the statutory damage provisions of the Copyright Act in order to encourage litigation that would help to excise false positives from the copyright corpus.

Main Results of the Study

Copyright false positives result in social harms that are often difficult to detect, but are nonetheless widespread and pernicious in their effects. The indeterminacy of clear boundaries between copyright claims—the result of minimal registration requirements and strong disincentives to litigation—allow for rent-seeking by opportunistic copyright owners and corresponding deadweight losses for licensees. As a result, information, transaction, and litigation costs for all participants in the copyright system are artificially increased. Moreover, attempts to push the lawful boundaries of copyright protection via overly broad, and sometimes ostensibly bogus, claims results in a public backlash. This decreases respect for and adherence to copyright law, and sets off a vicious downward spiral of increased piracy and increasingly aggressive enforcement tactics. In the process, labor and capital investments in creative enterprises are waylaid for fears of liability. Finally, and most dangerously, constitutionally protected speech rights are imperiled by the deterioration of the “safety valves” (fair use and the idea/expression dichotomy) that protect the First Amendment from the overexpansion of intellectual property rights.

Policy Implications as Stated By Author

To combat the growing problem of copyright false positives this Article offers various policy recommendations targeted at reducing the number of false positives and mitigating the damage they cause: (A) heightening registration requirements to include a substantive review of all copyright claims to be registered (these heightened requirements would not affect the substantive scope of copyright protection, but rather would create a procedural safeguard to diminish the number of questionable copyright claims ending up in court; (B) promulgating regulations that require periodic renewal of copyright registration; and (C) revising the statutory damage provisions in order to incentivize more copyright defense, thereby reducing the number of uncontested false positives.

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)
Green-tick.png
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)
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)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Green-tick.png
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: 42
Level of aggregation: Cases
Period of material under study: 1984 to 2013