Gerhardt (2011)
Contents
Source Details
| Gerhardt (2011) | |
| Title: | Copyright Publication: an Empirical Study |
| Author(s): | Gerhardt, D. |
| Year: | 2011 |
| Citation: | Gerhardt, D. R. (2011). Copyright publication: an empirical study. Notre Dame Law Review, 87(1). |
| Link(s): | Definitive , Open Access |
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| About the Data | |
| Data Description: | Cases were selected by (1) reviewing U.S.C.A. note references to the copyright statutes that mention “publish” or “publication,” (2) reviewing references in copyright texts, law review articles, and treatises, and (3) conducting keyword searches through LEXIS and Westlaw. 446 cases were selected of over 800 reviewed. |
| Data Type: | Primary data |
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| Cross Country Study?: | No |
| Comparative Study?: | No |
| Literature review?: | No |
| Government or policy study?: | No |
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Abstract
The Article presents the first empirical study of copyright publication, a concept that can mark a critical moment in the life of a creative work. Books, magazines, films, software and plays, as well as works of art, architecture, music, and even choreography may be protected by copyright. For works created before 1976, knowing whether a work is published is often necessary for determining whether it is in the public domain so that anyone can use it, copy it or adapt it in other media without risking copyright liability. A court’s determination of whether a work is published also may be dispositive of issues such as the duration of the copyright, if others can make fair use of it and whether, in litigation, statutory damages and attorney’s fees are available. Despite the obvious import of this concept, it remains one of the most ambiguous features of copyright law. How do judges decide whether a creative work is published? This article presents the first comprehensive and systematic answer to that question. Based on a dataset of federal judicial opinions, this article analyzes the extent to which accepted notions of copyright publication conform with legal doctrine. The results reveal that often they do not. In particular, this article demonstrates that publication has a surprisingly inconsistent meaning across copyright issues, differing dramatically between the public domain and fair use contexts. The analysis shows that the characteristics of the work, as well as how it is distributed and accessed are important to courts when deciding whether a work is in the public domain. These findings are especially noteworthy, since contrary to popular belief, courts increasingly encounter the issue of publication when answering a wide variety of copyright questions. Drawing upon the empirical findings, the Article recommends that the commonly used definitions of publication be changed to reflect the factors upon which judges actually rely in deciding these cases.
Main Results of the Study
Publication is still of great importance in judicial outcomes of copyright cases. Judges treat publication in accordance with the copyright question in the case (e.g., differently in a fair use case and a public domain case). Therefore, the current statutory definition of publication is insufficient and does not reflect the practical application and consideration of publication.
Policy Implications as Stated By Author
Statutory changes should be made to more accurately reflect judicial and practical applications of publication.
Coverage of Study
Datasets
| Sample size: | 446 |
| Level of aggregation: | Legal Decision |
| Period of material under study: | 1976-2010 |
