Jeanette Hofmann (Humboldt Institute, Berlin)


How do we observe these copyright laws hitting Europe and the US? For quite some time, getting tired of this moral and mental entrenchment, I thought that we need to change that debate. One way of changing it is to get empirical – to get out of normal and hermetic debates and look at what is really going on in these markets. In that respect, my work is very much in line with what you plan to do here in CREATe.

Last year I started with a literature overview, focussing on ‘low IP regimes’. There are markets where copyright either doesn’t work at all, or works only partially; where copyright isn’t the thing that necessarily governs those markets. There are several examples for low IP regimes, such as recipes for cooking; stand-up comedy or jokes, which is the main asset of the comedian but the jokes are not protected; video games, where it is always unclear to what extent copyright actually applies; and also TV formats which Martin and Sukhpreet have been working about.

So, what we found when we looked at these low IP regime case studies is that when copyright does not apply, the producers of creative goods come up with their own rules. It’s not chaos that exists there.

There are social norms informing and governing the circulation of those goods in these industries. And the interesting thing is that those social norms may actually be stricter than those from copyright law. What we also found in areas where copyright might apply to some degree, is that creators or producers use licensing contracts to compensate for the lack of certainty they get from law. And they might collectively imagine a right to see TV formats, there is no right in TV formats, but at the same time we see licensing contracts that govern the trade for these products. And there are markets such as Dojinshi, the fan culture of Japanese mangas, but also video games, where producers deliberately do not assert all the rights they could have, they sort of crave, if you will, informal imitations to copyright, because they see that they benefit from not claiming their rights.

So, what does that tell us? First of all, we can see that social norms play a major role in governing markets for cultural goods, and I think the meaning of those social norms have been completely underrated. Social norms might replace a lack of law, but they also might modify law, which is even more important.

Thus, unlike what the economics of copyright law says, a lack of law does not necessarily lead to a market shake-up. It’s interesting to look at how these markets are all at the interplay of social and people norms, and, one could look at social norms as a way of considering the formal copyright law.

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