The CREATe team were delighted to host European Policy for Intellectual Property (EPIP) Association’s 10th Annual Conference in the UK for the first time last September and would like to wish our colleagues at Oxford every success with EPIP 2016. The conference takes place from 3rd-5th of September 2016. The programme is excellent and we are very pleased to have had a good number of CREATe research papers accepted.
The work of CREATe will be very well represented at this year’s conference with eleven papers accepted. Abstracts for CREATe related submissions are provided below.
The full programme is available here.
Ruth Towse, “Digitisation, Multi-territorial Licensing and Copyright Management Organisations” – This paper extends the author’s earlier work (Towse, 2016, presented at EPIP2015) on the effect of digitization on the economics of collective rights management and now considers the impact of new arrangements for multi-territorial licensing on the institutional organization of Collective Management Organisations (CMOs) due to the EU Directive on Collective Management of Copyright and Related Rights 2014/26 EU. CMOs manage the various rights granted in copyright law to creators and performers, offering pooled services of rights administration to rights holders and users. CMOs are typically non-profit collectives, governed by members. They operate through blanket licensing of a specific right or bundle of closely related rights in their own territory with international agreements that mutually offer rights management services between them, enabling users to obtain a licence to effectively a world repertoire. This scenario is being challenged by the demands of users of digital works (initially of music) who wish to obtain one licence for all territories in the EU as part of the common market. The supply and demand for creative goods, however, vary radically between states in the EU and all CMOs are not able to offer equivalent digital licensing and digitised services to their members as required by the EU Directive. The larger CMOs are in a position to corner the market in copyright management, however and that may be detrimental to national cultures. This paper discusses these issues from an economic and cultural point of view.
Nicola Searle , “Changing Business Models in the Creative Industries: Industry Response to Copyright Challenges in the Digital Era” – Adopting a longitudinal case study approach, this paper reports on analysis of the interaction between business models and copyright. Beginning in late 1990s, business models were touted as the solution to market and technological changes, including increased copyright infringement, stemming from the advent of the digital era. In the ensuing years, business models have received mixed reviews from scholars who question business models’ ability to manage market change and the enforcement of copyright. This academic critique is in contrast to the widespread adoption of business model strategies by practitioners. This paper reports on a follow-up, longitudinal study of six case studies constructed in 2010, on the interaction between business models and copyright in the creative industries. It suggests that copyright is a secondary force in shaping business models, highlights wider challenges to the creative industries, and provides copyright policy recommendations.
Daniel John Zizzo; Sven Fisher, “Consuming copyrighted media without paying – A controlled experiment with a representative sample” – We report the results of controlled experiments on unlawful consumption of non-rivalry consumer goods such as film and music, with a sample of 1,200 participants, representative for the adult population aged 18 to 65 in the United Kingdom. Our study allows us to identify how consumer behaviour is affected by equity considerations towards the right holder, deterrence, intrinsic and social norms, and empirical expectations of how others behave. We are furthermore able to correlate experimental and real-world behaviour with reported norms, personality measures and sociodemographic characteristics.
Theodore Koutmeridis, Kris Erickson, Martin Kretschmer “Copyright and Digital Innovation in the Creative Economy: A survey of the evidence, using a peer-produced review method” – Within the last 20 years, copyright law has moved from an esoteric branch of law to the regulatory centre of challenges associated with the digital economy. Social science research emphasizes the importance of evidence in the design of informed policy interventions, and should be well placed to contribute to the evaluation of previous interventions and the design of future policy reforms. The need for evidence-based policies has been intensified by improvements in data and research designs, the development of interdisciplinary research and by the advance of knowledge exchange that encourages a creative dialogue across academe, policy and industry. Surprisingly, the evidence related to copyright policy still remains weak. For example, there have been no attempts to use new research methods relating to big data mining techniques which have encouraged researchers in other policy fields to build theories that are consistent with observation. This study utilises a unique source – a bottom-up, peer-produced Wiki of currently about 500 empirical papers – to attempt to catalogue the existing evidence on copyright policy. The present paper surveys the literature uncovered using this method and points to new directions for future work. A large-scale analysis of key theoretical propositions in the light of new data and empirical research reveals that the current policy debate is often misled. The assessment of the existing evidence indicates the significance of heterogeneity across the various creative industries, identifies successful research strategies from previous studies and highlights gaps.
Megan Blakely, “From Museums to Murals: Community Participation and Copyright in Public Art” – It is notoriously difficult to design and attach suitable legal rights to intangible cultural heritage (ICH), due to its nature as an evolving, living heritage. This article investigates the effects of domestic government intervention relating to Celtic-derived ICH in order to trace the relationship between formal proprietary rights, commodification, and cultural branding. Further, the converse effect of the resulting propertisation and commercialisation on these intangible cultural heritage practices will be examined, and intangible cultural heritage as a living, evolving practice by communities and legal methods, specifically related to intellectual property, will be emphasised.
Marcella Favale, Martin Kretschmer, Paul Torremans,“Normative Forces in the European Court of Justice: Who is Steering Copyright Jurisprudence?” – The Court of Justice of the European Union (ECJ) interprets the meaning of EU legislation. Larger numbers of preliminary references to the Court on the same legal concepts suggest either a normative void, or greater attention from political forces, or both. However, theexact impact of the influence of political forces on the jurisprudential outcome is unknown. Taking copyright as a case-study, the paper examines all preliminary references to the ECJ registered between 1998 and 2015 regarding at least one of the directives of the copyright acquis. The study aims at understanding to what extent the participation of third-parties to copyright litigation is strategic, and in what direction these parties intend to steer copyright jurisprudence. Case documents are examined with a mixed research methodology including doctrinal, content (text) and statistical analysis, in order to measure empirically the impact of third party submissions on the legal interpretation of copyright concepts in the ECJ.
Kristofer Erickson, “Measuring the costs and benefits of copyright re-use for follow-on creators: evidence from a crowdfunding marketplace” – This paper exploits the patronage-like features of an online crowdfunding market to study the effect of transaction and licensing costs on the ability of follow-on creators to successfully re-use existing works. We study the reported costs of production of 1,993 projects seeking funding on the Kickstarter platform from January to March 2014 to investigate if re-use of copyright material has a measurable effect on the cost of creation under four different conditions: (1) the creator has obtained a copyright license; (2) the creator vows to seek a license if funding is successful; (3) the creator borrows from a copyright work but does not discuss licensing; and (4) the creator borrows from a work in the public domain.
Andrea Wallace, “‘Display At Your Own Risk’: Misconnections Between Cultural Institutions and Users When Enabling Online Access to Public Domain Works” – It is common practice during the digitization of public domain works to claim new intellectual property rights over the digital surrogates. Whether this practice is generally accepted, however, is becoming increasingly controversial: by enforcing copyright to digital surrogates, cultural institutions have begun to expose such practices and generate greater public awareness and interest. Underlying digitization efforts is a genuine intent to make collections more available online. Yet, what the public understands about copyright, its expiration, and the reuse of public domain works online is often vastly different than what an institution formalizes and makes transparent through its policies and in practice. This article examines these points of genuine confusion and how they may have a chilling effect on engagement and use. By approaching the issue from a user’s perspective, the article presents research gathered during the curation of an experimental exhibition, which examines the various levels of access granted by cultural institutions to digital surrogates of public domain works. In doing so, this article addresses the gap between a user’s understanding of the public domain and a cultural institution’s approach when making works available online, which is translated through and guided by both institutional and legal norms. Ultimately, these access-driven policies are a product of systemic tensions and uncertainty in copyright law, and they result in misconnections between users and cultural institutions when enabling online access to public domain works.
Elena Cooper, “Copyright, Printsellers and Pirates: Art in the Courts in the Mid-Nineteenth Century” – This paper explores the role of illegal trade in ‘pirate’ photographs in the mid nineteenth century, in making art available to the wider public. In so doing, it draws on significant archival work relating to mid nineteenth century copyright cases brought by the leading printsellers of the time (such as Henry Graves and Ernest Gambart) against so-called ‘pirates’ distributing unauthorised photographic copies of engravings of popular paintings of the day (such as William Holman Hunt’s The Light of the World and William Powell Frith’s The Railway Station). In reflecting on these legal decisions, the paper situates judicial approaches to the scope of copyright, within the context of debates taking place outside the court room, about the potential of new technology – photography – to revolutionise access to great art, to the benefit of a new class of purchaser. Recent scholarship focussing on literary copyright, has argued that the nineteenth century approach to infringement offers ‘wisdom’ that might be instructive today; the nineteenth century courts adopted a balancing test which included consideration of the social purpose of the defendant’s use.1 This paper argues that a focus on artistic, rather than literary copyright, reveals a more complex picture, and provides different conclusions for today about the relation between infringement rules, new technologies and public access.
Eleonora Rosati, “International Jurisdiction in Online EU Trade Mark Infringement Cases: Where Is the Place of Infringement Located?” – Article 97 of the European Union Trade Mark Regulation (EUTMR) sets a number of grounds to determine international jurisdiction in cases of alleged infringement of a European Union trade mark (EUTM). Besides the possibility to bring proceedings before the courts of the Member State of domicile/establishment of the defendant/claimant and where the European Union Intellectual Property Office (formerly the Office for Harmonization in the Internal Market) has its seat, Article 97(5) EUTMR also allows for proceedings to be brought “in the courts of the Member State in which the act of infringement has been committed or threatened”. Lacking specific guidance from the Court of Justice of the European Union (CJEU), this contribution asks how Article 97(5) EUTMR is to be interpreted in relation to proceedings for alleged infringement of a EUTM over the internet. It concludes that, in light of preceding jurisprudence, the CJEU may hold that this is place where the activation of the process for the technical display of infringing content on a certain website takes place. While in the majority of instances this is likely to be the same place where the defendant is domiciled/established, this may not always be the case.
Chris Hanretty, Georg von Graevenitz & Prashant Gupta, “Patent Appeal Cases at the United Kingdom High Court” – This session brings together contributions from the ESRC Knowledge Exchange “Assessing the Unitary Patent and the Unified Patent Court”. This project was set up to investigate the patenting process in Europe before the introduction of the Unitary Patent System to provide a baseline against which to evaluate the impact of the Unitary Patent.