Gerhardt (2011)

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

Gerhardt (2011)
Title: Copyright Publication: an Empirical Study
Author(s): Gerhardt, D.
Year: 2011
Citation: Gerhardt, D. R. (2011). Copyright publication: an empirical study. Notre Dame Law Review, 87(1).
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: Cases were selected by (1) reviewing U.S.C.A. note references to the copyright statutes that mention “publish” or “publication,” (2) reviewing references in copyright texts, law review articles, and treatises, and (3) conducting keyword searches through LEXIS and Westlaw. 446 cases were selected of over 800 reviewed.
Data Type: Primary 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:
  • Not stated
Funder(s):
  • None stated

Abstract

The Article presents the first empirical study of copyright publication, a concept that can mark a critical moment in the life of a creative work. Books, magazines, films, software and plays, as well as works of art, architecture, music, and even choreography may be protected by copyright. For works created before 1976, knowing whether a work is published is often necessary for determining whether it is in the public domain so that anyone can use it, copy it or adapt it in other media without risking copyright liability. A court’s determination of whether a work is published also may be dispositive of issues such as the duration of the copyright, if others can make fair use of it and whether, in litigation, statutory damages and attorney’s fees are available. Despite the obvious import of this concept, it remains one of the most ambiguous features of copyright law. How do judges decide whether a creative work is published? This article presents the first comprehensive and systematic answer to that question. Based on a dataset of federal judicial opinions, this article analyzes the extent to which accepted notions of copyright publication conform with legal doctrine. The results reveal that often they do not. In particular, this article demonstrates that publication has a surprisingly inconsistent meaning across copyright issues, differing dramatically between the public domain and fair use contexts. The analysis shows that the characteristics of the work, as well as how it is distributed and accessed are important to courts when deciding whether a work is in the public domain. These findings are especially noteworthy, since contrary to popular belief, courts increasingly encounter the issue of publication when answering a wide variety of copyright questions. Drawing upon the empirical findings, the Article recommends that the commonly used definitions of publication be changed to reflect the factors upon which judges actually rely in deciding these cases.

Main Results of the Study

Publication is still of great importance in judicial outcomes of copyright cases. Judges treat publication in accordance with the copyright question in the case (e.g., differently in a fair use case and a public domain case). Therefore, the current statutory definition of publication is insufficient and does not reflect the practical application and consideration of publication.

Policy Implications as Stated By Author

Statutory changes should be made to more accurately reflect judicial and practical applications of publication.



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
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)
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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)
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Datasets

Sample size: 446
Level of aggregation: Legal Decision
Period of material under study: 1976-2010