Heins and Beckles (2005)

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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

Heins and Beckles (2005)
Title: Will Fair Use Survive? Free Expression in the Age of Copyright Control.
Author(s): Heins, M., Beckles, T.
Year: 2005
Citation: Heins, M. And Beckles, T. (2005) Will Fair Use Survive? Free Expression in the Age of Copyright Control. A Public Policy Report. Available: https://ncac.org/fepp-articles/will-fair-use-survive-free-expression-in-the-age-of-copyright-control (last accessed 23 May 2019)
Link(s): Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: The study implemented a range of methods, including:

• Focus group discussions with members of PEN American Centre, Women Make Movies, The College Art Association and the Location One Gallery;

• Telephone interviews with 17 participants;

• An online survey yielding 290 respondents, and;

• An analysis of 320 cease and desist and takedown letters.

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?: Yes
Time Period(s) of Collection:
  • 2004-2005
Funder(s):

Abstract

“Are increasingly heavy assertions of control by copyright and trademark owners smothering fair use and free expression? The product of more than a year of research, Will Fair Use Survive? paints a striking picture of an intellectual property system that is perilously out of balance.”

Main Results of the Study

• Many creators are aware of fair use, but often misunderstand how it works, including mistakenly believing that e.g. there are numerical limits on the amount of material that can be used under fair use.

• Fair use practices may be industry specific, with some industries (particularly in film and education) being particularly chilled by clearance culture, whereas bloggers/YouTubers etc. are more liberal in their use of other’s materials.

• Almost 50% of the cease and desist/takedown letters surveyed contained weak claims that may have been defeated by fair use or freedom of expression. More than half of the recipients who received such letters acquiesced to the request of the sender.

Policy Implications as Stated By Author

The report provides a range of recommendations, many focussing on improving copyright education and accessibility. This includes: creating a comprehensible clearinghouse on fair use; better uptake and awareness of counter notice procedures; monitor ISPs and their takedown behaviours and; creating a national legal support centre. The report also suggests some statutory amendments, including a reduction of penalties (including the elimination of monetary damages in cases where fair use was reasonably presumed) and introduction of alternative dispute resolution mechanisms.



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)
Green-tick.png
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