Sag (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

Sag (2017)
Title: Empirical Studies of Copyright Litigation
Author(s): Matthew Sag
Year: 2017
Citation: Sag, M. (2017) Empirical Studies of Copyright Litigation. Research Handbook on the Economics of Intellectual Property Law (Vol. II -- Analytical Methods) (Edward Elgar Publishing) (Forthcoming)
Link(s): Open Access
Key Related Studies:
Discipline:
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About the Data
Data Description: The study comprises a literature review of empirical studies in copyright litigation, ranging from 2004 to 2016.
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?: No
Time Period(s) of Collection:
Funder(s):

Abstract

“This essay summarizes the current state-of-the-art in the application of observational empirical tools to the study of copyright litigation. As a field, Empirical Legal Studies (or ELS) is relatively young, and the subfield of ELS applied to copyright litigation is in its infancy. Broadly speaking, the existing empirical studies of copyright litigation can be classified into three subcategories: studies of judicial behavior; studies of the day to day life of copyright litigation from the time cases are filed to their ultimate disposition; and studies of particular aspects of copyright doctrine. The essay reviews the existing literature and concludes with guidelines for researchers planning to undertake an empirical study of copyright litigation that represent current ‘best practices’.”

Main Results of the Study

The study identifies three main branches of empirical studies:

Judicial behaviour:

In the US, IP case outcomes are influenced by judicial ideology (on liberal-conservative scales) in the Supreme Court (Sag, Jacobi and Sytch, 2009) (though perhaps not elsewhere per Beebe, 2008). Second Circuits are overrepresented in copyright textbooks (Ford, 2006).

In Europe, EUCJ judicial reasoning results in a narrowing scope of copyright, rather than the broader, harmonising agenda that is claimed (Favale, Kretschmer and Torremans, 2016).

Day to day life of copyright litigation:

Nature of the works in question, party characteristics, and relevant industries may influence litigation outcomes (Cotropia and Gibson, 2014), with low-IP industries and smaller firms disproportionately represented.

Filesharing litigation appears to be centralised around certain plaintiffs, rather than being widespread phenomena (Sag, 2015).

Particular copyright aspects:

These include event studies (Barnes, 2000, and Liu, 2012), substantial similarity (Lippman, 2013), publication (Gerhardt, 2011), and fair use (Nimmer, undated, Beebe, 2008, Netanel, 2011, Sag, 2012, Reese, 2015, and Samuelson, 2009).

Policy Implications as Stated By Author

Whilst the author does not make any explicit policy recommendations, they do provide three “best practice” considerations for empirical research in copyright:

(a) make data open and accessible; (b) be aware of, and account for, selection bias; (c) be wary of the predictive value of data gathered within a given timeframe.



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)
Green-tick.png

Datasets