Elkin-Koren, Nahmias and Perel (2019)

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

Elkin-Koren, Nahmias and Perel (2019)
Title: Is It Time to Abolish Safe Harbor? When Rhetoric Clouds Policy Goals
Author(s): Niva Elkin-Koren, Yifat Nahmias, Maayan Perel
Year: 2019
Citation: Elkin-Koren, N., Nahmias, Y. And Perel, M. (2019) Is It Time to Abolish Safe Harbor? When Rhetoric Clouds Policy Goals. Stanford Law & Policy Review, Forthcoming
Link(s): Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: The study consists of a literature review of empirical data on revenues in the music industry. This data is then compared against the claims made by members of the music industry in debates surrounding the “value gap”.
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?: Yes
Government or policy study?: No
Time Period(s) of Collection:
Funder(s):
  • The Israel Science Foundation (Grant No. 1820/17)

Abstract

“The safe harbor, which exempted online intermediaries from liability for materials hosted by their systems, has been the cornerstone of internet policy over the past several decades. Recently however, the worrying proliferation of illegal content, from copyright infringement to fake news to hate speech to terrorist propaganda, is triggering calls to abolish the safe harbor. The rhetoric is rather straightforward: platforms benefit from the sharing of content, they have the power to efficiently and effectively guard against illicit content, and if held liable for users’ content they will act to address the spread of illegal content. Inflaming this rhetoric is a widespread understanding that platforms might have become too powerful and that in practice they have become the new online governors. Nevertheless, the current debate on platform liability is heavy on rhetoric but light on facts. It rarely addresses the consequences of abolishing the safe harbor and hardly questions whether introducing liability would be likely to achieve a desirable outcome. Using the example of the music industry’s call to amend copyright safe harbor because it has allegedly generated a “value gap,” this paper aims to demonstrate the dangers of designing policy based on unsubstantiated and populist rhetoric. The paper analyzes the value gap debate and debunks the allegations of right holders claiming that they generate insufficient income from digital platforms and this reduces their incentives to create. While creators might have legitimate claims regarding a drop in their revenues, misleading rhetoric that remains unchecked might lead to misguided policy. At a macro level, our findings suggest that it is not necessarily the safe harbor that should be blamed for the worrying power concentration in todays’ platform economy and that populist allegations must be verified carefully before being acted upon.”

Main Results of the Study

Having surveyed empirical evidence of revenues in the music industry, the study finds that revenues have overall increased. These findings contradict claims surrounding the existence of a “value gap” between online platforms and artists which the authors attribute to two factors:

• a poor definition of what is included/excluded from definitions of “value gap”. In particular, the study finds that revenues from streaming services and sharing platforms are largely unaccounted for in value gap discussions, which may contribute to differences in royalties received.

• fragmented approaches as to what constitutes “fair” remuneration. In particular, the study notes that such claims often do not account for the value created by user-generated content, which would suggest a full account of revenues would be inappropriate. Furthermore, whilst copyright may be used to establish a market, it cannot be used to guarantee it.

Furthermore, the study finds it questionable that any “value gap” is related to safe harbour legislation, instead citing differences in bargaining power being caused by technological advantage and cultural popularity (of platforms such as YouTube). Instead, where revenues are overall increasing in the music industry, the study suggests that any “value gaps” are more likely to be caused by an unfair division of profits by corporations, rather than a lack thereof.

Policy Implications as Stated By Author

The authors argue that the decline of remuneration for artists is not a result of safe harbour legislation, but rather other social and economic factors. As such, the abolishment of any safe harbour on the assumption that this creates a “value gap” would be a mistake. In fact, the perceived benefits of any abolishment may backfire, causing increases in licensing fees and transaction costs (by reducing the number of blanket licences employed by platforms) and changes in business models (e.g. to subscription services, or as producers of original content as opposed to licensees). Content filtering may also be inevitable. The paper concludes by urging policy to be based on empirical evidence and academic analysis, as opposed to unverified rhetoric.


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)
Green-tick.png
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
Green-tick.png

Datasets