Silbey (2014a)

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

Silbey (2014a)
Title: The Eureka Myth: Creators, Innovators and Everyday Intellectual Property
Author(s): Silbey, J.
Year: 2014
Citation: Silbey, J. (2014) The Eureka Myth: Creators, Innovators and Everyday Intellectual Property. Stanford University Press: Stanford.
Link(s): Definitive
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About the Data
Data Description: Data were obtained from interviews with 50 participants from a range of professions in copyright, patent and trade mark-rich fields, including: filmmakers, photographers, chemical engineers, biologists, (IP) lawyers and business executives. Participants were sourced using letter campaigns and snowball sampling.
Data were coded based on language terms and narratives using the qualitative software Atlas.ti. Thereafter, key themes were derived iteratively from the process.
Data Type: Primary data
Secondary Data Sources:
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Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
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Abstract

“Are innovation and creativity helped or hindered by our intellectual property laws? In the two hundred plus years since the Constitution enshrined protections for those who create and innovate, we're still debating the merits of IP laws and whether or not they actually work as intended. Artists, scientists, businesses, and the lawyers who serve them, as well as the Americans who benefit from their creations all still wonder: what facilitates innovation and creativity in our digital age? And what role, if any, do our intellectual property laws play in the growth of innovation and creativity in the United States?
Incentivizing the "progress of science and the useful arts" has been the goal of intellectual property law since our constitutional beginnings. The Eureka Myth cuts through the current debates and goes straight to the source: the artists and innovators themselves. Silbey makes sense of the intersections between intellectual property law and creative and innovative activity by centering on the stories told by artists, scientists, their employers, lawyers and managers, describing how and why they create and innovate and whether or how IP law plays a role in their activities. Their employers, business partners, managers, and lawyers also describe their role in facilitating the creative and innovative work. Silbey's connections and distinctions made between the stories and statutes serve to inform present and future innovative and creative communities.
Breaking new ground in its examination of the U.S. economy and cultural identity, The Eureka Myth draws out new and surprising conclusions about the sometimes misinterpreted relationships between creativity and intellectual property protections.”

Main Results of the Study

• Copyright as a means of motivating and initiating creativity is largely superfluous, and is rarely considered by creators when embarking on a new project. Further, with the prevalence of the work-for-hire doctrine and transfer of ownership through employment contracts, this means that everyday creators do not experience copyright as belonging to them in any case.
• By contrast, copyright may be more important in the later stages of a work’s lifecycle. However, this may not correspond exactly to what is needed from creators, and may be over enforced (e.g. where reputation is at stake) or under enforced (e.g. in order to share with a community for feedback). As such, adaptability of copyright via contract remains an important tool for creators.
• Copyright as an economic driver is not a primary motivation of creators. Instead, motivations to create are much more diverse, including having the requisite time and space to complete work, an appreciative audience, the intellectual challenge, and having professional autonomy. Creators also repeatedly make more of an emotional attachment to the process of creation, describing their works as being analogous to children, and the process of raising a child.

Policy Implications as Stated By Author

The study makes two, complementary policy suggestions. First, to err on the side of under enforcement of copyright interests, instead focussing on best-practices in specific communities. Second, to penalise over enforcement through misuse claims, and particularly focussing on reform of e.g. statutory damages in copyright cases.


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)?
Green-tick.png
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)
Green-tick.png
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)
Green-tick.png
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

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