Sag (2012)

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

Sag (2012)
Title: Predicting Fair Use
Author(s): Sag, M.
Year: 2012
Citation: Sag, M. (2012). Predicting fair use. Ohio State Law Journal, 73, 1.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by: Cotropia and Gibson (2014)
About the Data
Data Description: This study is based on a unique dataset of more than 280 fair use cases decided in U.S. District Courts between January 1, 1978 and May 31, 2011. The dataset combines publicly available information from written opinions and court records, as well as data from other sources such as company databases and the Martindale-Hubbell directory of attorneys and law firms.
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:
  • Not stated
Funder(s):

Abstract

Fair use is often criticized as unpredictable and doctrinally incoherent - a conclusion which necessarily implies that the copyright system is fundamentally broken. This article confronts that critique by systematically assessing the predictability of fair use outcomes in litigation. Concentrating on characteristics of the contested use that would be apparent to litigants pre-trial, this study tests a number of doctrinal assumptions, claims and intuitions that have not, until now, been subject to empirical scrutiny.

This article presents new empirical evidence for the significance of transformative use in determining the outcomes of fair use cases. It also substantially undermines conceptions of the doctrine that are hostile to fair use claims by commercial entities and that would restrict limit the application of fair use as a subsidy or a redistributive tool favoring the politically and economically disadvantaged. Based on the available evidence, the fair use doctrine is more rational and consistent than is commonly assumed.

Main Results of the Study

Main results of the study:

  • The evidence from litigated cases analyzed in the article confirms the centrality of transformative use.
  • Transformative use by the defendant is a robust predictor of a finding of fair use.
  • The results of this study also confirm the significance of the statutory factor that addresses “the amount and substantiality” of the defendant’s unauthorized use of the plaintiff’s work. Although the effect is not as large as was transformative use, there is clear evidence confirming that partial copying weighs in favor of the defendant’s assertion of fair use.
  • It is also apparent from the data that there are many strong cases of fair use involving copying the entirety of the plaintiff’s work. Technologies that rely on digital processing of entire copyrighted works, such as Internet search engines and plagiarism detection software, nonetheless present a very strong case for fair use.
  • There is no evidence that commercial use (in contrast to direct commercial use) reduces the defendant’s chance of maintaining a fair use defense.
  • Regression analysis of the effect of party status variables on the probability of a finding of fair use either failed to find the predicted underdog effect or found exactly the opposite.
  • This study offers considerable evidence against the oft-repeated assertion that fair use adjudication is blighted by unpredictability and doctrinal incoherence.

Policy Implications as Stated By Author

Policy implications:

  • Other jurisdictions may be considering importing the fair-use doctrine in to their own copyright laws. For example, the Hargreaves report, commissioned by the British government, ultimately recommended against grafting a U.S.-style fair use exemption onto English copyright law because, in part, of the perceived uncertainty of fair use.
  • Although the Hargreaves Commission appears to have accurately understood the potential benefits of fair use, it, like many American commentators, has misunderstood and exaggerated the costs.
  • Standards are not necessarily more unpredictable than rules nor is flexibility the same thing as unpredictability. The evidence presented in the study suggests that fair use is not nearly so incoherent or unpredictable as is conventionally assumed.



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)?
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)
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: 280
Level of aggregation: US District Court Cases
Period of material under study: 1978-2011