Difference between revisions of "B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)"

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This field includes papers that examine policy issues related to whether materials which otherwise are subject to exclusive copyright protection should be available for justifiable use without seeking permission and whether existing exceptions and limitations facilitate creative and scientific progress. Among others, the papers included under this category distinguish exceptions and limitations for the purposes of innovation or public policy, open-ended provisions from closed lists, commercial and non-commercial uses.
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Copyright laws provide for limits to the exclusive rights of the copyright owner through the provision of exceptions or defences to infringement. In UK legislation such provisions are referred to as ‘permitted acts’ (Chapter 3, Part I CDPA 1988). The international standard is the three-step-test set out in the Berne Convention: the permitted acts must apply to ‘certain special cases’, must not ‘conflict with a normal exploitation of the work’ and not ‘unreasonably prejudice the legitimate interests of the author’ (Berne Convention Art 9(2)). Whereas US copyright law provides for a general principle of ‘fair use’ (17 U.S.C. para.107), European Union legislation provides an exhaustive list of specific exceptions (Art 5 Information Society Directive 2001/29/EC); the implementation of one exception, (concerning certain ‘transient or incidental’ acts of reproduction) is compulsory, but others are optional. The UK has always provided for ‘permitted acts’ through specific provisions (as opposed to the broader principle of ‘fair use’ in US law), including ‘fair dealing’ in relation to criticism or review of a work, research or private study. In recent years, the UK has included further specific ‘permitted acts’ within the parameters of Art 5 Information Society Directive, for instance data mining and parody. The full list can be found at Part I, Chapter 3 of the Copyright Designs and Patents Act 1988.
 
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There is a significant body of work by legal scholars exploring the rationale for imposing limits to the rights of the copyright owner. Amongst other things, the literature has explored the relation between these legal provisions and (i) the public interest, (ii) innovation, and (iii) market failure (as proposed by Kretschmer, 2014). For example, an exception which enables the use of orphan works (those works where the copyright owner is unknown or impossible to locate) could be justified under (i) as providing greater access to shared cultural heritage for social purposes. An orphan works exception could also be justified in terms of innovation under (ii) as unlocking expressions for new creativity, which would otherwise be undeveloped, or under (iii) because the costs in locating and asking permission from unknown rightsholders are high enough that they make it impossible to contract. Similarly, the UK debate of a private copying exception in 2014,  justified it on all three grounds as (i) providing consumer benefit and convenience, bringing everyday practice into alignment with copyright statues, (ii) encouraging innovation by enabling intermediary services and (iii) addressing market failure by enabling a practice which takes place in the private sphere beyond the ability to contract. The exception was challenged according to justification (iii) with opponents arguing that it did not address market failure without an accompanying levy in place on writable media such as iPods and blank CDs.  Other European jurisdictions use consumer levies to raise funds which are used to compensate rightsholders for private copying which takes place beyond their control. The argument that such copying could be priced-in and thus reflected in the initial price of creative goods was challenged in the UK. and a need for better evidence identified (British Academy of Songwriters, Composers and Authors v Secretary of State for Business, Innovation and Skills EWHC 1723 (Admin) (19 June 2015). https://www.judiciary.gov.uk/wp-content/uploads/2015/06/basca-v-sofs-bis-judgment.pdf
 
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Policy concerns arise, for instance, from balancing the three justifications noted in the previous section, such as (i) the need to balance the public interest with other legal restrictions which may override the effectiveness of exceptions, such as end-user license agreements, contracts and DRM systems (see Favale, 2011; Hargreaves, 2012; Kretschmer et al, 2010); (ii) whether exceptions are compatible with broader political and economic objectives such as pursuit of a digital single market in the EU or new innovative digital practices (see Erickson et al, 2013; Mendis, 2013); and (iii) whether exceptions or private contracting would improve economic welfare, for example in choosing between a non-commercial exception for user-generated content or relying on proliferating use of automated private licensing (Heald et al, 2015; Karaganis & Urban, 2015). Some legal theorists and practitioners have proposed more radical changes to EU copyright law, questioning whether principles such as fair use or minimum standard user rights would be more appropriate legislative tools to promote innovation while remaining technologically agnostic (Dobusch & Quack, 2013).
 
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''Existing evidence''
 
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Following the Gowers review of Intellectual Property in 2006 and leading up to the implementation of the Hargreaves review in 2014, a significant amount of data were gathered from industry, consumer and policy representatives in the UK context.  These qualitative and anecdotal accounts nevertheless form a corpus which builds understanding of the various views and political stakes in the debates around copyright reform and exceptions (see Edwards et al, 2015; Erickson, 2014). Additional empirical data about the anticipated consumer welfare and economic impact of new copyright exceptions were collected and analysed as part of both review exercises (see for example the IPO impact assessments on Quotation and Parody).  [LINK]
 
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Scholarly research on exceptions consists of policy reports and peer-reviewed articles. Reports by Favale et al (2013) on the proposed orphan works licensing scheme and work by Erickson et al (2013) on the impact of the proposed Parody exception are indicative of evidence gathered and used in the policy process itself. Both of these studies adopt a mixed socio-legal/economics approach which explores the appropriate balance of rights and consumer interests in the context of incentivising new production and use of copyright works.  In Canada, research by the CPCC (2008) on consumer music download behavior was used to argue for collection of a levy on format shifting of music content to digital devices, showing that format shifting behavior was a widespread practice.  Canada adopted a levy-free digital format shifting exception in 2012.
 
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''Evidence needed''
 
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In order to evaluate and assess the implementation of new copyright exceptions, there are ongoing opportunities for researchers to provide evidence on the impact of changes to copyright in the form of specific exceptions, prior to and following their introduction. In the context of the UK, there is evaluative potential in the wake of the Hargreaves reforms of 2014. Research should verify whether there has been, for example, a measureable impact on audience or licensing revenue as a result of the UK parody exception. Comparative research and/or natural experimental methods are naturally suited to addressing these gaps for other national contexts.
 
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In the case of newly proposed exceptions or potential reforms, additional empirical evidence is needed to assess and consider each of the justifications of copyright exceptions.  For example, while legal-theoretical justifications exist for promoting the public interest through exceptions (i), there is less empirical evidence on the impact of exceptions on metrics of public interest such as participation, access, uptake, and knowledge dissemination. Where possible, qualitative assessments should be supplemented with quantitative sociological research in these areas. This research is of utmost importance to balance economic concerns which already form the main pillar of national policy evaluations. There is further empirical legal studies research to be done on the precise relationship between copyright statutes and creative enterprise. For example, who is using fair dealing exceptions and why? What are the impediments to relying on fair dealing exceptions for those who would create new expressions? What will be the status of different national exceptions if Europe moves toward a Digital Single Market? What should be the guiding principles for weighing the public interest in future policy determinations involving technology and the market?
 
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A great deal of research has been carried out by management scholars and economists on the relationship between intellectual property and the ability of firms to appropriate value from innovation (Teece, 1986; von Hippel and von Krogh, 2003). However, a smaller proportion of this research has dealt directly with copyright, and even fewer studies have addressed copyright exceptions (for one example, see Haefliger et al, 2010). Further research is needed to assess the impact of newly proposed exceptions, as well as their scope, on innovation-based justifications (ii). For example, the status of override-by-contract on copyright exceptions is important because it re-balances the scales between platform operators, users, and rightsholders, with potential implications for innovation. Empirical research is needed to assess whether the gains in innovation enjoyed by users due to exceptions can offset potential harm to rightsholders or losses of control suffered by platform operators. 
 
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Economic welfare calculations are central to policy decision-making around changes to copyright, as evidenced by the data used to evaluate the Hargreaves reforms. Economic approaches have been the most commonly applied methodological tools to assess copyright and they continue to be useful (Landes & Posner, 1989; Scotchmer, 2007; Waldfogel, 2014). The status of copyright exceptions requires further clarification in policy, which can be aided by rigorous empirical analysis. In order to further address policy concern about the status of exceptions in markets characterised by contracting and/or technological protection measures (TPMs), research must be conducted to establish (i) whether and how best to assert the primacy of exceptions and (ii) the anticipated economic impact of any proposed policy changes in terms of both industry growth and consumer welfare.
 
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The issue of user-generated content is at the forefront of policy reform initiatives, with some groups calling for a broad ‘right to remix’ on one end of the spectrum, and industry support for commercial licensing alternatives on the other. Copyright exceptions are directly implicated in this debate, because they legally define what users can fairly do with a copyright work (such as quoting or parodying it).  Fair use and fair dealing principles are challenged by expansion of automated notice and takedown procedures that have become widespread on certain online content platforms.  Empirical work is needed urgently on the ability of notice and takedown procedures to take into account fair use and fair dealing in online settings, so that clear policy recommendations can be made to improve the way that user-generated content is regulated.
 
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The principle of fair use has been extensively analysed in empirical legal studies literature in the USA, with a large body of research covering many different consumer practices in many settings (See Cheliotis (2007); Netanel (2011); Aufderheide and Sinnreich, 2015).  Somewhat less work has been done on the practical usage of specific copyright exceptions in Europe. There is therefore an open question about whether the ‘closed list’ approach adopted by Europe is the most effective way to balance public interest with copyright holders’ interests.  While such expansive questions are perhaps best left to legal theorists, there are practical empirical concerns that are worth answering in the European context:  How can the public interest best be served without prejudicing the rights of creators? What is the most effective way of promoting new innovation and how should copyright law respond to the challenges introduced by new technologies and new creative practices?
 
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''References''
 
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Dobusch, L., & Quack, S. (2013). Framing standards, mobilizing users: Copyright versus fair use in transnational regulation. Review of International Political Economy, 20(1), 52-88.
 
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Edwards, L., Klein, B., Lee, D., Moss, G., & Philip, F. (2015). Discourse, justification and critique: towards a legitimate digital copyright regime?. International Journal of Cultural Policy, 21(1), 60-77.
 
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Erickson, K., Kretschmer, M., & Mendis, D. (2013). Copyright and the Economic Effects of Parody: An Empirical Study of Music Videos on the YouTube Platform and an Assessment of the Regulatory Options. Independent Report for the UK Intellectual Property Office (2013/24).
 
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Favale, M. (2011). Approximation and DRM: can digital locks respect copyright exceptions?. International Journal of Law and Information Technology, 19(4), 306-323.
 
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Favale, M., Homberg, F., Kretschmer, M., Mendis, D., Secchi, D. (2013). ‘Copyright and the Regulation of Orphan Works:  A comparative review of seven jurisdictions, and a rights clearance simulation’, Independent Report for the UK Intellectual Property Office (2013/31).
 
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Gowers, A. (2006). Gowers review of intellectual property. London UK: The Stationery Office.
 
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Hargreaves, I. (2011). Digital Opportunity: A Review of Intellectual Property and Growth: An Independent Report. London: UK Intellectual Property Office.
 
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Heald, P., Erickson, K. Kretschmer, M.  (2015). The Valuation of Unprotected Works: A Case Study of Public Domain Photographs on Wikipedia. Harvard Journal of Law and Technology, 28(3) p. 1-37.
 
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Karaganis, J., & Urban, J. (2015). The rise of the robo notice. Communications of the ACM, 58(9), 28-30.
 
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Kretschmer, M., Derclaye, E., Favale, M., & Watt, R. (2010). The relationship between copyright and contract law. A Review commissioned by the UK Strategic Advisory Board for Intellectual Property Policy (SABIP).
 
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Kretschmer, M. (2014). What does empirical evidence contribute to the question of fair copyright?.Paper presented at British-Israeli Workshop on Fair Copyright Law: Limitations & Exceptions, Tel-Aviv University, January 6-7, 2014.
 
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Liebowitz, S. J. (1985). Copying and indirect appropriability: Photocopying of journals. The Journal of Political Economy, 945-957.
 
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Mendis, D. (2013). The Clone Wars'-‐Episode 1: The Rise of 3D Printing and its Implications for Intellectual Property Law-‐ Learning Lessons from the Past. European Intellectual Property Review, 35(3), 155-169.
 
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Teece, D. (1986). Profiting from technological innovation: Implications for integration, collaboration, licensing and public policy. Research policy, 15(6), p. 285-305.
 
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Von Hippel, E. and Von Krogh, G. (2003). Open source software and the “private-collective” innovation model: Issues for organization science. Organization science, 14(2), p. 209-223.
 
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Latest revision as of 11:03, 14 November 2016

This field includes papers that examine policy issues related to whether materials which otherwise are subject to exclusive copyright protection should be available for justifiable use without seeking permission and whether existing exceptions and limitations facilitate creative and scientific progress. Among others, the papers included under this category distinguish exceptions and limitations for the purposes of innovation or public policy, open-ended provisions from closed lists, commercial and non-commercial uses.


Evidence Based Policy Areas

B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) is an evidence based policy area defined within the Copyright Evidence wiki.

The following studies are related to this issue (153):

 Citation
Adu and van der Walt (2021)Adu, T.L. and van der Walt, T.B. (2021) Effects of awareness of user rights on compliance with copyright laws and policies in academic libraries. The Journal of Academic Librarianship, 47(4)
Akerlof, Hahn and Litan (2002)Akerlof, G. A., Arrow, K. J., Bresnahan, T., Buchanan, J. M., Coase, R., Cohen, L. R. & Hemphill, C. S. (2002). The copyright term extension act of 1998: An economic analysis. Washington DC: AEI-Brookings Joint Center for Regulatory Studies.
Akester (2009)Akester, P. (2009). Technological accommodation of conflicts between freedom of expression and DRM: the first empirical assessment. Available at SSRN 1469412.
Angelopoulos (2012)Angelopoulos, C. (2012). The myth of European term harmonisation: 27 public domains for the 27 member states. International Review of Intellectual Property and Competition Law (2012) Vol, 43, 567-594.
Arai and Kinukawa (2014)Arai, Y. and Kinukawa, S., 2014. Copyright infringement as user innovation. Journal of Cultural Economics, 38(2), pp.131-144.
Astle and Muir (2002)Astle, P.J. and Muir, A., 2002. Digitization and preservation in public libraries and archives. Journal of Librarianship and Information Science, 34(2), pp.67-79.
Attorney-General's Department (2008)Attorney-General's Department (Australia), 2008, Review of copyright exceptions for private copying of photographs and films - final report, Attorney-General's Department (Australia)
Aufderheide and Sinnreich (2015)Aufderheide, P., & Sinnreich, A. (2015). Documentarians, fair use, and free expression: changes in copyright attitudes and actions with access to best practices. Information, Communication & Society, (ahead-of-print), 1-10.
Aufderheide et al. (2013)Aufderheide, P., Jaszi, P., Bieze, K. and Boyles, J. (2013) Copyright, Free Speech, and the Public's Right to Know: How Journalists Think About Fair Use. Journalism Studies, 14(6)
Aufderheide et al. (2018)Aufderheide, P., Pappalardo, K., Suzor, N. And Stevens, J. (2018) Calculating the consequences of narrow Australian copyright exceptions: Measurable, hidden and incalculable costs to creators. Poetics, 69, pp15-26.
Aufderheide, Milosevic and Bello (2015)Aufderheide, P., Milosevic, T., & Bello, B. (March 11, 2015). The Impact of Copyright Permissions Culture on the U.S. Visual Arts Community: The Consequences of Fear of Fair Use. New Media & Society.
Aufderheide, Sinnreich, Imperiale, and Silvernail (2016)Aufderheide, P., Sinnreich, A., Imperiale, L., Silvernail, C. (2016). Norms-Shifting on Copyright and Fair Use in The Visual Arts Community. Visual Arts Review (Winter 2018).
Australian Law Reform Commission (2013)ALRC Report 122 (2013), available at http://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_alrc_122_2nd_december_2013_.pdf.
Azoulay, Graff Zivin and Manso (2009)Azoulay, P., Graff Zivin, J. S., & Manso, G. (2011). Incentives and creativity: evidence from the academic life sciences. The RAND Journal of Economics, 42(3), 527-554.
Balganesh, Manta and Wilkinson-Ryan (2014)Balganesh, S., Manta, I., & Wilkinson-Ryan, T. (2014). Judging similarity. 100 Iowa Law Review 267; University of Pennsylvania Law School, Public Law Research Paper No. 14-15; Hofstra Univ. Legal Studies Research Paper No. 2014-09. Available at SSRN 2409811.
Barker (2012b)Barker, George Robert, 'Estimating the Economic Effects of Fair Use and Other Copyright Exceptions: A Critique of Recent Research in Australia, US, Europe and Singapore' (November 26, 2012).
Benkler (1999)Benkler, Y. (1999). Free as the air to common use: First amendment constraints on enclosure of the public domain. NyuL Rev., 74, 354.
Benson (2018)Benson, S.R. (2018) ncreasing Librarian Confidence and Comprehension in a Fair Use Training Session. Libraries and the Academy, Vol 18(4), pp 781-804 (preprint)
Bjork (2012)Björk, B.C., The Hybrid Model for Open Access Publication of Scholarly Articles–a Failed Experiment?.
Brøvig-Hanssen and Jones (2021)Brøvig-Hanssen, R., & Jones, E. (2021). Remix’s retreat? Content moderation, copyright law and mashup music. New Media & Society. https://doi.org/10.1177/14614448211026059
Butler, Aufderheide, Jaszi and Cox (2019)Butler, B., Aufderheide, P., Jaszi, P., & Cox, K. (2019). Cracking the Copyright Dilemma in Software Preservation: Protecting Digital Culture through Fair Use Consensus? Journal of Copyright in Education and Librarianship, 3(3), 1-23.
Camerani, Grassano, Chavarro and Tang (2013)Camerani, R., Grassano, N., Chavarro, D. & Tang, P. (2013) Private Copying, IPO, 2013
Canat, Guibault and Logeais (2015)Canat, J., Guibault, L. and Logeais, E., Study on Copyright Limitations and Exceptions for Museums, World Intellectual Property Organization (2015) SCCR/30/2.
Castañer and Campos (2002)Castañer, X. and Campos, L., 2002. The determinants of artistic innovation: Bringing in the role of organizations. Journal of Cultural Economics, 26(1), pp.29-52.
Cave, Deegan and Heinink (2000)Cave, M., Deegan, M. and Heinink, L., 2000. Copyright clearance in the refugee studies centre digital library project. RLG DigiNews, 4(5).
Center for Social Media (2010)Center for Social Media. (2010). Clipping Our Own Wings: Copyright and Creativity in Communication Research. American University.
Centre for Intellectual Property and Information Law (2016)Centre for Intellectual Property and Information Law (2016), Response to Article 11 of the Proposal for a Directive on Copyright in the Digital Single Market, entitled ‘Protection of press publications concerning digital uses’ on behalf of thirty seven professors and leading scholars of Intellectual Property, Information Law and Digital Economy
Charles River Associates (2013)Assessing the Economic Impacts of Adapting Certain Limitations and Exceptions to Copyright and Related Rights in the EU, Charles River Assoc., (2013), available at
Charness and Daniela (2014)Charness, G., & Grieco, D. (2014). Creativity and Financial Incentives.
Cheliotis (2007)Cheliotis, G. (2007). Remix culture: an empirical analysis of creative reuse and the licensing of digital media in online communities.
Corbett (2011)Corbett, S., 2011. Archiving Our Culture in a Digital Environment: Copyright Law and Digitisation Practices in Cultural Heritage Institutions. New Zealand Law Foundation Report.
Crews (2015)Crews, K., Study on Copyright Limitations and Related Rights, Standing Committee on Copyright and Related Rights, Thirtieth Session, SCCR/30/3 (2015).
Danbury (2016)Danbury, R. (2016). Is an EU publishers’ right a good idea? Final report on the AHRC project: Evaluating potential legal responses to threats to the production of news in a digital era, https://www.cipil.law.cam.ac.uk/sites/www.law.cam.ac.uk/files/images/www.cipil.law.cam.ac.uk/documents/copyright_and_news/danbury_publishers_right_report.pdf
David (1993)David, P. A. 1993. “Intellectual Property Institutions and the Panda’ s Thumb: Patents , Copyrights and Trade Secrets in Economic Theory and History”, in M. Wallerstein, M. Mogee and R. Schoen (eds .), Global Dimensions of Intellectual Property Rights in Science and Technology . Washington DC: National Academy Press; 19-61.
De Wolf and Partners (2013)Triaille, J.P., Dusollier, S., Depreeuw, S., Hubin, J.B. and De Francquen, A., 2013. Study on the application of Directive 2001/29/EC on copyright and related rights in the information society. InfoSoc Directive.
De Wolf and Partners (2014a)De Wolf & Partners, Study on the Legal Framework of Text and Data Mining (TDM) (2014).
De Wolf and Partners (2014b)Study on the Making Available Right and its Relationship with the Reproduction Right in Cross-border Digital Transmissions, De Wolf & Partners (2014).
Depoorter and Walker (2013)Depoorter, B. and Walker, R.K., 2013. Copyright false positives.
DiCola (2013)DiCola, P. (2013). Money from Music: Survey Evidence on Musicians' Revenue and Lessons About Copyright Incentives. Ariz. L. Rev., 55, 301.
Dickson (2010)Dickson, M., 2010. Due diligence, futile effort: Copyright and the digitization of the Thomas E. Watson papers. The American Archivist, 73(2), pp.626-636.
Dobusch and Quack (2013)Dobusch, L., & Quack, S. (2013). Framing standards, mobilizing users: Copyright versus fair use in transnational regulation. Review of International Political Economy, 20(1), 52-88.
Dryden (2008)Dryden, J.E., 2008. Copyright in the real world: Making archival material available on the Internet (Doctoral dissertation, University of Toronto).
Dulong de Rosnay and Langlais (2017)Dulong de Rosnay, M. and Langlais, P. (2017) Public artworks and the freedom of panorama controversy: a case of Wikimedia influence. Internet Policy Review Vol. 6(1)
Dusollier (2010)Dusollier, S., WIPO (2010) CDIP/4/3/REV./STUDY/INF/1.
Edwards, Klein, Lee, Moss and Philip (2015)Edwards, L., Klein, B., Lee, D., Moss, G., & Philip, F. (2015). Discourse, justification and critique: towards a legitimate digital copyright regime?. International Journal of Cultural Policy, 21(1), 60-77.
Ekiz (2019)Ekiz, O. (2019) Documenting the copyright sphere: can festivals solve the problem of copyright clearance for documentaries? Queen Mary Journal of Intellectual Property 9 (4)
Erickson (2014)Erickson, K. (2014) User Illusion: Ideological Construction of ‘User- Generated Content’ in the EC Consultation on Copyright. Internet Policy Review 4(3). DOI:10.14763/2014.4.331
Erickson and Kretschmer (2018)Erickson, K. and Kretschmer, M. (2018) “This Video is Unavailable”: Analysing Copyright Takedown of User-Generated Content on YouTube. Journal of Intellectual Property, Information Technology and E-Commerce Law (JIPITEC), 9(1)
Erickson, Heald, Homberg, Kretschmer and Mendis (2015)Erickson, K., Heald, P. J., Homberg, F., Kretschmer, M., & Mendis, D. (2015). Copyright and the Value of the Public Domain: An Empirical Assessment. Intellectual Property Office Research Paper.
Erickson, Kretschmer and Mendis (2013)Erickson, K., Kretschmer, M., & Mendis, D. (2013). Copyright and the Economic Effects of Parody: An Empirical Study of Music Videos on the YouTube Platform and an Assessment of the Regulatory Options. Intellectual Property Office Research Paper, (2013/24).
... further results
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