Penney (2017)

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

Penney (2017)
Title: Internet Surveillance, Regulation, and Chilling Effects Online: A Comparative Case Study
Author(s): Jon Penney
Year: 2017
Citation: Penney, J. (2017) Internet Surveillance, Regulation, and Chilling Effects Online: A Comparative Case Study. Internet Policy Review (Forthcoming). Available at SSRN: https://ssrn.com/abstract=2959611
Link(s): Open Access
Key Related Studies:
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About the Data
Data Description: The research consists of a survey with 1212 respondents, which was designed to understand the “chilling effect”. A social platform was used to gather responses, which is most representative of the US demographic. The survey examined behavioural responses to four hypothetical scenarios:

First, a scenario that involves uncertain details of regulation, but with significant penalties for violation;

Second, a scenario that involves state or non-state surveillance;

Third, a DMCA-style scenario involving personal delivery to the infringing individual;

Fourth, a scenario where respondents are notified via social media that e.g. a friend has been the target of an infringement notice.

These scenarios were described to respondents, who thereafter answered a set of questions about their behaviours in response to this; their responses were in turn analysed using Goodman and Kruskal’s gamma and Pearson’s chi-square test.

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:
Funder(s):
  • SSHRC
  • Government of Canada
  • Canadian Centinnial Scholarship Fund

Abstract

“With internet regulation and censorship on the rise, states increasingly engaging in online surveillance, and state cyber-policing capabilities rapidly evolving globally, concerns about regulatory “chilling effects” online — the idea that laws, regulations, or state surveillance can deter people from exercising their freedoms or engaging in legal activities on the internet have taken on greater urgency and public importance. But just as notions of “chilling effects” are not new, neither is skepticism about their legal, theoretical, and empirical basis; in fact, the concept remains largely un-interrogated with significant gaps in understanding, particularly with respect to chilling effects online. This work helps fill this void with a first-of-its-kind online survey that examines multiple dimensions of chilling effects online by comparing and analyzing responses to hypothetical scenarios involving different kinds of regulatory actions — including an anti-cyberbullying law, public/private sector surveillance, and an online regulatory scheme, based on legal notice and takedown procedures, enforced through personally received legal threats/notices. The results suggest not only the existence and significance of regulatory chilling effects online across these different scenarios but also evidence a differential impact — with personally received legal notices and government surveillance online consistently having the greatest chilling effect on people’s activities online — and certain online activities like speech, search, and personal sharing also impacted differently. The results also offer, for the first time, insights based on demographics and other similar factors about how certain people and groups may be more affected than others, including findings that younger people and women are more likely to be chilled; younger people and women are less likely to take steps to resist regulatory actions and defend themselves; and anti-cyberbullying laws may have a salutary impact on women’s willingness to share content online suggesting, contrary to critics, that such laws may lead to more speech and sharing, than less. The findings also offer evidence of secondary chilling effects — where users’ online activities are chilled even when not they, but others in their social networks receive legal processes.”

Main Results of the Study

A DMCA-style personal notification has the largest chilling effect on a user’s likelihood to speak or write about certain topics (75% being either somewhat less likely, or much less likely to do so), and to regulate how careful about what they say online (81% agreeing with this). A scenario of government surveillance has the second highest levels of chilling effect.

Online searches are most readily chilled by a governmental surveillance scenario, with 77% of respondents noting that they would be “more careful” about their searches; this is followed by a corporate surveillance scenario, where 64% of respondents noted they would be “more careful”. This is the only area where DMCA-style personal notifications are not the most chilling, potentially as this raises a privacy concern.

Sharing on social media is most chilled by a DMCA-style personal notification (with 72% of respondents noting they would be “much less” or “somewhat less” likely to share content online), followed by a governmental-surveillance style scenario (60%).

Across all scenarios, there is a potential for “networked” effects of deterrence where a user hears of a person in their network being personally targeted by a DMCA-style notification. This is the third most likely scenario to create a chilling effect.

The research also notes demographic factors which may chill user behaviour, noting that younger users and women are more susceptible to this. Users who more closely follow news on surveillance practices unrelated to online activities are also more likely to experience chilling effects.

Policy Implications as Stated By Author

Whilst the author does not make any explicit policy recommendations, they do highlight that chilling effects are harmful for democratic participation. All scenarios examined, including regulatory measures and state and non-state interventions, have a demonstrable chilling effect, which may in turn lead to the loss of personal freedoms.



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