Miceli and Adelstein (2006)

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

Miceli and Adelstein (2006)
Title: An economic model of fair use
Author(s): Thomas J. Miceli and Richard P. Adelstein
Year: 2006
Citation: Miceli, Thomas J., and Richard P. Adelstein. An economic model of fair use. Information Economics and Policy 18.4 (2006): 359-373.
Link(s): Definitive
Key Related Studies:
Discipline:
Linked by: Charles River Associates (2013)
About the Data
Data Description: This study compares two systems of fair use within copyright, one of permissive fair use (limited protection of the author's monopoly) and one of stricter fair use (greater protection). This paper the develops a formal model of fair use in an effort to derive the efficient legal standard for applying the doctrine, highlighting the role of technology in shaping the efficient standard.The study also uses the data from a literature review of 8 studies to test the model.
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?: Yes
Time Period(s) of Collection:
  • 1984 to 1989
Funder(s):

Abstract

The doctrine of fair use allows limited copying of creative works based on the rationale that copyright holders would consent to such uses if bargaining were possible. This paper develops a formal model of fair use in an effort to derive the efficient legal standard for applying the doctrine. The model interprets copies and originals as differentiated products and defines fair use as a threshold separating permissible copying from infringement. The analysis highlights the role of technology in shaping the efficient standard. Discussion of several key cases illustrates the applicability of the model.

Main Results of the Study

By employing a differentiated product model, we were able to develop a threshold test for fair use that balances the benefits of wider use of original works against the possible disincentive for authors to create the works in the first place. More importantly, the model underscores the role of technology in shaping the optimal fair use standard. As the Napster case illustrates, the emergence of technologies that permit both fair and infringing uses heightens the need for the court to delineate the optimal scope for fair use.

Policy Implications as Stated By Author

  • This study proposes an economic model to determine the appropriate level of 'fair use'
  • The model is aimed at usage by courts in determining the level of infringement in the increasing number of cases brought due to technological advances enabling copying since the Napster case



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)?
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)
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: 2
Level of aggregation: fair use systems in copyright
Period of material under study: 1982-2003