Liu (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

Liu (2019)
Title: An Empirical Study of Transformative Use in Copyright Law
Author(s): Jiarui Liu
Year: 2019
Citation: Liu, J. (2019) An Empirical Study of Transformative Use in Copyright Law. Stan. Tech. L.Rev. 22(1) pp. 164 - 241
Link(s): Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: The study analyses all transformative use decisions in US copyright history, as of 1 January 2017, consisting of 260 fair use decisions, sourced using boolean searches on Westlaw and Lexis. Thereafter, cases were coded systematically using 83 variables.
Data Type: Primary and 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:
  • January 2017
Funder(s):

Abstract

“This article presents an empirical study based on all reported transformative use decisions in U.S. copyright history through January 1, 2017. Since Judge Leval coined the doctrine of transformative use in 1990, it has been grad-ually approaching total dominance in fair use jurisprudence, involved in 90% of all fair use decisions in recent years. More importantly, of all the dispositive decisions that upheld transformative use, 94% eventually led to a finding of fair use. The controlling effect is nowhere more evident than in the context of the four-factor test: A finding of transformative use overrides findings of commercial purpose and bad faith under factor one, renders irrelevant the issue of whether the original work is unpublished or creative under factor two, stretches the extent of copying permitted under factor three towards 100% verbatim re-production, and precludes the evidence on damage to the primary or derivative market under factor four even though there exists a well-functioning market for the use.Although transformative use has harmonized fair use rhetoric, it falls short of streamlining fair use practice or increasing its predictability. Courts diverge widely on the meaning of transformative use. They have upheld the doctrine in favor of defendants upon a finding of physical transformation, purposive trans-formation, or neither. Transformative use is also prone to the problem of the slippery slope: courts start conservatively on uncontroversial cases and then ex-tend the doctrine bit by bit to fact patterns increasingly remote from the original context.This article, albeit being descriptive in nature, does have a normative connotation. Courts welcome transformative use not despite, but due to, its ambiguity, which is a flexible way to implement their intuitive judgments yet maintain the impression of stare decisis. However, the rhetorical harmony conceals the differences between a wide variety of policy concerns in dissimilar cases, invites casual references to precedents from factually unrelated contexts, and substitutes a mechanical exercise of physical or purposive transformation for an in-depth policy analysis that may provide clearer guidance for future cases.”

Main Results of the Study

• The 2nd and 9th district courts account for a disproportionately higher number of transformative use cases (27.3% and 32.7% respectively), of which the top three subject-matter types consist of literary (29.6%), photographic (22.7%) and audiovisual works (19.2%).

• Whilst, overall, 50.8% of the cases surveyed found in favour of fair use, the distribution is not even; before 1995 no case of transformative use was ever successful, yet now transformative use cases make up 90% of all fair use decisions. Works which consist of criticism, comment, parody, and scholarship/research are more likely to be considered transformative.

• In terms of the factors of fair use, transformative use dominates the outcomes of factor one (purpose and character of the use) and 4 (the effect of the use upon the potential market for or value of the copyrighted work), but diminishes the weight allocated to factor 2 (nature of the work) - i.e. if a work is found transformative, the fact it is e.g. unpublished does not impact a fair use finding. Factor 3 (amount and substantiality of portion) does not appear to impact a finding of fair use for transformative works.

Policy Implications as Stated By Author

Whilst the author does not offer any specific policy suggestions, they instead note that the nature of transformative use in itself was built on dubious policy foundations. To remedy this, case-by-case policy analyses may take into account efficiency and equity considerations in order to avoid a “slippery slope” of removing transformative use away from its original context (e.g. by applying this to questions of scholarship/research where other fair use factors may be more accurate). In short, invoking transformative use as a blanket term risks diminishing its role.



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)
Green-tick.png
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)
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