Kretschmer, Derclaye, Favale and Watt (2010)
|Kretschmer, Derclaye, Favale and Watt (2010)|
|Title:||The relationship between copyright and contract Law|
|Author(s):||Kretschmer, M., Derclaye, E., Favale, M., Watt, R.|
|Citation:||Kretschmer, M., Derclaye, E., Favale, M., & Watt, R. (2010). A Review commissioned by the UK Strategic Advisory Board for Intellectual Property Policy (SABIP). Available at SSRN 2624945|
|Link(s):||Definitive , Open Access|
|Key Related Studies:|
|About the Data|
|Data Description:||The researchers took a comparative international approach, reviewing the evidence for the UK and several other countries. Rather than selecting a set number of jurisdictions, the consortium drew on different countries for different parts of the review.|
|Data Type:||Primary data|
|Secondary Data Sources:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||Yes|
|Government or policy study?:|
|Time Period(s) of Collection:||
Contracts lie at the heart of the regulatory system governing the creation and dissemination of cultural products in two respects: (1) The exclusive rights provided by copyright law only turn into financial reward, and thus incentives to creators, through a contract with a third party to exploit protected material. (2) From a user perspective purchases of protected material may take the form of a licensing contract, governing behaviour after the initial transaction. Thus, a review of the relationship between copyright and contract law has to address both supply- and demand-side issues. On the supply side, policy concerns include whether copyright law delivers the often stated aim of securing the financial independence of creators. Particularly acute are the complaints by both creators and producers that they fail to benefit from the exponential increase in the availability of copyright materials on the Internet. On the demand side, the issue of copyright exceptions and their policy justification has become central to a number of reviews and consultations dealing with digital content. Are exceptions based on user needs or market failure? Do exceptions require financial compensation? Can exceptions be contracted out by licence agreements? This report (i) reviews economic theory of contracts, value chains and transaction costs, (ii) identifies a comprehensive range of regulatory options relating to creator and user contracts, using an international comparative approach, (iii) surveys the empirical evidence on the effects of regulatory intervention, and (iv) where no evidence is available, extrapolates predicted effects from theory.
Main Results of the Study
- In general, the economic theory profession has not considered in any detail the relationship between the legal institution of copyright and the types of contracts that are written along the value chain for copyright goods. Overall, a more careful, methodological, and above all a more formal application of the well-known principal-agent framework to the specific case of copyright constitutes the most logical first step forward for economists.
- The relationship between copyright and contract law lies at the heart of the regulatory system governing the creation and dissemination of cultural products. Overall, it remains an open question whether there is a negative or positive relationship between the strength of copyright protection and the total earnings of creators.
- The analysis of the legislation, the case law, and the literature of the targeted countries so far reveals a substantial body of literature and case law on the interplay between copyright and contract within the United States. The European Union follows, with substantial legislation and literature, but not much relevant case law.
Policy Implications as Stated By Author
A more formal application of the well-known principal-agent framework to the specific case of copyright constitutes the most logical first step forward for economists.
Coverage of Study
|Level of aggregation:||Country|
|Period of material under study:||Not stated|