Silbey (2019b)

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 (2019b)
Title: Justifying Copyright in the Age of Digital Reproduction: The Case of Photographers
Author(s): Silbey, J.
Year: 2019
Citation: Silbey, J. (2019) Justifying Copyright in the Age of Digital Reproduction: The Case of Photographers. UC Irvine Law Review, 9, pp. 405-454
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by: Silbey (2019a)
About the Data
Data Description: Data are drawn from two sources:

• Legal analysis of three court cases (Burrow-Giles Lithographic Co. v Sarony, Bleistein v Donaldson Lithographic Co. and Feist Publications inc. v Rural Telephone Service Co.).
• Interviews with 32 photographic authors, distributed among a range of genres, including photojournalists, portrait photographers and fine art photographers.

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?: No
Time Period(s) of Collection:
  • 2017 - 2019
Funder(s):
  • John Simon Guggenheim Memorial Foundation (2018)
  • Northeastern University Humanities Center (2017–2018)
  • Spangenberg Center for Law, Technology and the Arts at Case Western Reserve University School of Law

Abstract

“This Article explores the justification for copyright from two sources: seminal court cases and accounts from photographic authors. It takes as its premise that copyright protection requires justification, not only because creative work is frequently made and disseminated without reliance on copyright, but because, in the age of digital technology, practices of creative production and dissemination have sufficiently changed to question the existing contours of the forty-year-old Copyright Act. Why read the photographers’ stories alongside the court cases? Each present contested views of copyright’s relation to creativity. At times, the photographers’ accounts and the case law strengthen and reinforce each other; other times, their differences challenge the other’s coherence. Reading the accounts side-by-side further identifies synergies that may serve as moral confirmation for winners in the copyright system. At the same time, comparisons reveal opportunities for resistance by those who contest copyright law’s explanation of how it promotes creativity as a function of “progress.” The social structures made legible through the overlapping stories of creativity, copying, and copyright delineate in diverse ways the object of value (“copyright” and “original works of authorship”) as well as the anxieties regarding digital age trends of widespread dissemination and verbatim copying. Simultaneously, these same stories signal an expectation of access to the tools of distribution and of opportunity to practice one’s own art, undermining copyright’s exclusivity and value associated with it. Understanding this complex position regarding digital reproduction, creative practices, industry changes, and professional opportunity may be useful for reforming copyright in a manner that includes rapidly evolving aesthetic practices and diverse creators of the future.”

Main Results of the Study

• Photographers distinguish between the photographer and photographs as works, with a tendency to focus more on the unique and notable inputs of the photographer as director. By contrast, the camera itself is largely perceived as a tool. This follows the logic of the court decision in Burrow-Giles with composition and arrangement by photographers constituting originality.
• Photographers largely affirm the principle of aesthetic neutrality, believing that courts have no business in assessing the creativity of a photograph, or regulating the process of ‘aesthetic borrowing’ and imitation. However, copyright remains a valuable tool for constraining verbatim copying of photographs, which is operationalised via bespoke contract.
• Professional photographers distinguish themselves in the digital era through their expertise, skill and labour. Thus, the extended originality standard affirmed in Feist may devalue this differentiation by extending access to copyright authorship.

Policy Implications as Stated By Author

The study does not make any explicit policy recommendations.



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
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)
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)
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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