This is part of a series of summary posts rounding-up new entries to the Copyright Evidence Wiki (organised thematically). As part of CREATe’s workstream for the AHRC Creative Industries Policy and Evidence Centre, the Wiki catalogues empirical studies on copyright. This month, Dr Kenny Barr summarises new featured studies on the closely related issues of: copyright term; reversionary rights and public domain; and digitalisation of culture.
Copyright Term Extension
Among the most contentious aspects of copyright is its temporal scope. Debates around how long copyright should endure have been central to copyright discourse throughout history. The Statute of Anne, Lord Macaulay’s 1841 ‘evil of monopoly’ speech, through to the recent successful campaign by content industries and prominent creators to extend sound recording copyright from 50 to 70 years in the EU in 2013 serve as examples. It follows that empirical evidence has been deployed by scholars, policymakers and industry lobbyists alike in support of varying, but often conflicting, arguments as to the optimal duration of copyright term. Recent entries on Copyright Evidence Wiki are highly relevant to these matters.
Directly related to the 2013 extension for sound recording copyright (known in the UK as ‘Cliff’s Law’ after the octogenarian ‘Peter Pan of Pop’ and ardent advocate of term extension, Sir Cliff Richard, whose recording career commenced in the 1950s and continues to the present day) is the Intellectual Property Office (2018) term extension post-implementation review. The review finds that 5-years after implementation the economic effects of term extension have been modest but will grow over time. Interestingly, the report finds no evidence of any performers invoking the much vaunted ‘use it or lose it’ provision that was central to the lobbying in support of this intervention. Continuing with the issue of copyright term in music Garcia and McCrary (2019) looks at sales and streams of recorded music and finds the current duration of music copyright to be excessive, instead arguing a considerably shorter term of 5-10 years to be optimal. Building on this, Garcia, Hicks and McCrary (2020) suggest that a better balance between incentivising creativity and ensuring a robust public domain can be achieved by finding a more ‘carefully calibrated’ term of protection. MacGarvie, McKeon and Watson (2018) find that the negative effects of term extension on the availability of music are likely to be moderated by the proliferation of streaming platforms such as Spotify.
Reversionary Rights and Public Domain Works
Another pair of studies recently added to the Wiki focus on copyright term and the closely connected issue of reversionary rights that limit the assignable dimensions of copyright. Heald (2020a) conducts a cost/benefit analysis of reversion rights in book publishing and music industries concluding that, on-balance, the negative effects of terms extension can be offset by implementation of reversion rights. In their comparative study Flynn, Giblin and Petitjean (2019) examine the availability of copyright and public domain e-books for libraries in Australia, Canada, New Zealand and the USA. Contrary to the ‘underuse hypothesis’ that suggests long copyright is required to incentivise commercial publishers to invest in older works, the authors’ survey finds that public domain works are more readily available from commercial publishers. Heald (2020b) examines potential effects of copyright term extension in the South African book publishing market, finding that term extension is likely to make certain titles scarcer and more expensive but points to the mitigating effects of reversion rights as well as availability of public domain works on Google Books.
Erickson, Kretschmer and Mendis (2019) examine the practicalities and effects of use of different types of public domain works in various commercial and non-commercial settings. The study offers a definitional toolkit for the study of public domain that extends beyond those works where copyright has expired and those that predate copyright e.g. forms of expression that do not attract copyright and works offered to public domain by creators.
Digitalisation of Culture
In addition to these studies on the duration of copyright, another issue relating to scope is how copyright extends into the digital realm. Heald (2014c) performs a study of the availability of copyright and non-copyright songs available on YouTube. The central finding is that ‘notice and takedown’ systems can be effective in establishing mutually fruitful exchanges between infringing uploaders and rightsholders that result in more works being available than would be the case under a strict liability regime. While Heald’s study focuses on those conversant in the workings of streaming platforms, Leung, Kretschmer and Meletti (2020) considers streaming consumption habits of different demographic groups in the UK. The study reports that age and social class are strong predictors of awareness of legal/illegal options and participation in streaming. Older groups are less likely to engage on any basis which has implications not only for participation in digital culture but also points a large untapped commercial market ripe for development.