Lemley (1997)

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

Lemley (1997)
Title: The Economics of Improvement in Intellectual Property Law
Author(s): Lemley, M. A.
Year: 1997
Citation: Lemley, M. A. (1997). The Economics of Improvement in Intellectual Property Law. Tex. L. Rev., 75, 989-1835.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: This study compares how improvements were treated in 50 U.S. patent infringement cases to 80 copyright infringement cases over the period 1853 to 1996. The authors also include a literature review on the development of intellectual property rights.
Data Type: Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: Yes
Literature review?: Yes
Government or policy study?: No
Time Period(s) of Collection:
  • 1853 to 1996
Funder(s):

Abstract

"A number of doctrines in modern copyright and patent law attempt to strike some balance between the rights of original developers and the rights of subsequent improvers. Both patents and copyrights are limited in duration and in scope. Each of these limitations provides some freedom of action to subsequent improvers. Improvers are free to use material that is in the public domain because the copyright or patent has expired. They are free to skirt the edges of existing intellectual property rights, for example by taking the ideas but not the expression from a copyrighted work or "designing around" the claims of a patent. However, improvers cannot always avoid the intellectual property rights of the basic work on which they wish to improve. Some improvements fall within the scope of the preexisting intellectual property right, either because of an expansive definition of that right or because economic or technical necessity requires that the improver hew closely to the work of the original creator in some basic respect. Here, the improver is at the mercy of the original intellectual property owner, unless there is some separate right that expressly allows copying for the sake of improvement."

Main Results of the Study

  • The author notes that intellectual property law represents a "delicate balance" between the rights of intellectual property owners and the rights of users (including the next generation of owners).
  • He notes the different treatment of improvement under patent and copyright law: patent law through the blocking patents rule and the reverse doctrine of equivalents offers a better protection for radical improvers than copyright law does.
  • The author therefore proposes the adoption of a “radical improvement doctrine” analogous to the one that is found in patent law. This doctrine would incorporate some of the cases that are currently covered by the Fair Use doctrine as well as cases not specific to fair use exceptions.


Policy Implications as Stated By Author

  • The author argues that copyright rules regarding improvement should mirror patent doctrines. Thus, he suggests that there should be a rule of "blocking copyrights" akin to the blocking patents doctrine.
  • Also, the "transformative use" doctrine taking roots in courts has the potential (on the condition that it is applied properly) to protect radical improvers from liability to original copyright owners even in cases where the improvements harm the market for the original work.


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)?
Green-tick.png
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)
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)

Datasets

Sample size: 130
Level of aggregation: Cases
Period of material under study: 1853 to 1996