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Authorship, Attribution, and Audience

Dec 7, 2015 Laura A. HeymannAdd a Comment

When the architect Philip Johnson was late in remitting payment for a sculpture he had purchased from the artist Robert Morris, Morris did not, apparently withhold the sculpture itself. Rather, he created an addendum, a note that read as follows:

The undersigned, Robert Morris, being the maker of the metal construction entitled Litanies, described in the annexed Exhibit A, hereby withdraws from said construction all aesthetic quality and content and declares that from the date hereof said construction has no such quality and content.

Johnson purchased the document, and the deed — whatever it was — was done. The sculpture and the document are now both part of the collection of the Museum of Modern Art in New York.

Whether Morris’s act was the result of true pique or only a bit of cheekiness is unclear. But it gives rise to a set of familiar and still debated questions: Was the “metal construction” no longer art because its “maker” no longer wished to stand by its aesthetic qualities? And, if so, does that mean that the sculpture no longer had an artist but had merely a manufacturer? Does authorship (and, throughout, I will use the term to encompass all modes of creative production) require at least artistic conceptualization? Or is skillful craftsmanship sufficient, so long as the relevant community perceives aesthetic value in the work?

Two recent book chapters give thoughtful consideration to these issues.

The first, by Kirsty Robertson in the collection Putting Intellectual Property in Its Place, discusses the Chinese suburb of Dafen, known officially as the “Dafen Oil Painting Village.” The town produces 60 percent of the world’s oil painting replicas (about five million per year), primarily Old Masters and modernist works in the public domain, although some works are replicas of paintings by living artists and others are of modern subjects “in the style of” famous artists. Between 8,000 and 10,000 artists work in Dafen, “with many of them producing twenty to thirty copies of paintings per day.” (P. 158.)

Consider only the replicas of public domain works, putting aside any questions of copyright infringement. Are the Dafen artists to be considered authors, or are they merely highly skilled technicians, no more creative than a photocopier? The answer, as Robertson perceptively describes, depends in large part on the cultural lens through which one views authorship. The Western commentary on the Dafen artists that tends to devalue their work as mere copying emanates from much the same interpretive community as that which heralds Richard Prince’s work as innovative. Indeed, as Robertson writes, some Western commentators view the Dafen artists with sympathy, forced to sublimate their creative impulses in favor of mass production. (Never mind the fact that the Dafen paintings are anything but mass produced.) By contrast, notes Robertson, the Dafen artists themselves see each painting as highly original and individualized despite the goal of having it very closely resemble a prior work. Thus, notes Robertson, this sets up “a distinction between content and labor, with Western commentators tending to position authenticity in the content and Chinese workers and commentators positioning it in the act of painting” (P. 164.) Authorship for the former arises from concept; authorship for the latter arises from execution.

U.S. copyright law, however, continues to struggle with these concepts. Because it is tied to a view that equates authorship with originality, and copyrightability to a protected work “fixed in a tangible medium of expression,” the law on its face is sometimes too rigid when it is applied to artistic or social practices that diverge from this model. (Robertson herself demonstrates how difficult it is to avoid employing the typical discourse when she defends the Dafen artists against characterizations of their work as “fake paintings” by noting “there is no attempt at all to pretend that they are original.” (P. 165.) (emphasis mine)) So Judge Leval, in Fisher v. Klein, 6 USPQ2d 1795 (S.D.N.Y. 1990), focuses the authorship question on conceptualization and authority in relevant cases, describing a sculptor

who might sit in a chair, never moving and never touching the materials, perhaps in part because he might be paralyzed or simply because the materials might be large and heavy. There are sculptors nowadays who work in huge materials, I-beams, storage tanks, things like that, that are welded together where the sculptor’s contribution is rendered entirely by the giving of instructions to workmen to put a member in a certain position and bolt it to another member and so forth. I think it is clear without question that such participation … is recognized as authorship under the copyright law even if the author never places his hand on the material

and the Second Circuit determines that the dramaturge Lynn Thomson was not an author of the musical Rent because the playwright Jonathan Larson did not intend her to be one, consistently listing himself as the sole author of the script.

Whether copyright law should take more account of such social and artistic practices is the subject of Lionel Bently and Laura Biron’s “Discontinuities Between Legal Conceptions of Authorship and Social Practices: What, If Anything, Is to be Done?,” their contribution to the edited volume The Work of Authorship. Bently and Biron’s work thoughtfully explores the way that the concept of authorship in U.S. and U.K. copyright law is “out of sync” with social practice in various creative communities.

Bently and Biron focus on three areas of creative output to illustrate their point: scientific publications, conceptual art, and the editing of literary works. Scientific publications, unlike publications in many other academic fields, typically involve a significant number of named authors. (There are even here some outliers, such as a 1993 article in the New England Journal of Medicine that was attributed to 976 authors.) This phenomenon, as Bently and Biron note, reflects the nature of scientific research, the norms of academia in those fields, and the requirements of grant funding, tenure and promotion review, and other systems of recognizing work. Thus, attribution in the sciences may be based on a wider array of contributions to the work than is typical of written work in other disciplines, including study design, data analysis, and the writing up of results. (Indeed, despite Posner’s “prose envelope” in Gaiman v. McFarlane, one typically expects a co-author to a law review article to have contributed at least part of the written expression.)

By contrast, attribution norms in the conceptual art world and in literary editing call for the elimination of the identity of contributors. Sol LeWitt is identified as the author of his wall drawings, despite the fact that his contribution was limited to the instructions to be executed by others; and notable literary editor Maxwell Perkins did not see his name on the front of Look Homeward, Angel despite the fact that his selection and arrangement of material in the drafts contributed heavily to the literary success of Thomas Wolfe’s novel.

None of these arrangements are necessarily seen as unusual or, perhaps, even unfair, although one must acknowledge the power dynamics at play in at least some of these situations (as did Mary LaFrance in her analysis of Thomson v. Larson). But it would be a mistake to assume that they always reflect the truth of creation, as opposed to custom, norms, or contract. Attribution is a signaling device first and foremost, and so it may not always be aligned with copyright’s author (the holder of legal rights), with the individual who put pen to paper, or with the community’s view of the author. The author Robert Galbraith, at the first minute of his existence, had both created nothing and created everything that J.K. Rowling had already written.

Thus, Bently and Biron are correct, in my view, when they conclude that statements of authorship must be recognized for their limitations, and that there is likely to be a fundamental disconnect between these signals and copyright law. As they note, “the legal system requires the identification of authorship as a mechanism for achieving certain functions, most obviously as regarding the initial allocation of copyright . . . However, traditionally, the British and US legal systems have not treated the legal definition of authorship as determining of attribution practices” (P. 256.) The challenge, perhaps, is in assuming that there should be any alignment between the attribution on a particular artistic expression and the name of the person entitled to enforce the legal rights attached to that work, simply because the two functions share, in some instances, the title “author.”

So, as the subtitle asks: What, if anything, is to be done? Here, Bently and Biron are less specific and more preliminary, although understandably so. After evaluating and ultimately rejecting other proposals in the literature, they argue for a more flexible, dynamic, and “open-textured” concept of authorship that can be deployed variably depending on the context and over time as social norms in an industry develop. Ultimately, they argue for a separate attribution right that “could be extended to all relevant contributors to the making of a work (or perhaps to any intellectual endeavor)” (P. 267.) This will, they hope, both reflect claims of authorship arising out of social norms and provide an outlet for those who would otherwise use copyright law to vindicate those claims in the public arena.

Can such a project, promising though it is, operate distinct from questions of originality, audience, power, and authenticity? Will it merely reflect norms or also reinforce or even create them? This remains to be seen. For now, as Robertson notes, the artists of Dafen will carry on, creating “fake” art that “hide[s] the labor of their making” so as not “to unravel the premise that the idea makes the art not the work.” (P. 174–75.)

Designing Architectural Copyright

Nov 4, 2015 Mark McKennaAdd a Comment

In his new piece Economically Defeasible Rights to Facilitate Information Disclosure: The Hidden Wisdom of Pre-AWCPA Copyright, Kevin Collins brings his background as a trained architect to bear on the puzzling history of architectural copyright. In Collins’s view, far from being inadequate, as some have contended, pre-AWCPA copyright was a sort of Goldilocks solution: not so strong as to prevent beneficial borrowing, not too weak to provide incentives, but instead just right to solve a particular disclosure problem unique to the design-minded architecture market. In the process, Collins makes a compelling case for tailoring in copyright, and for the importance of theory to doctrinal design.

Before the Architectural Works Protection Act was passed in 1990, architectural works received an unusually narrow form of copyright protection, even as compared with other highly useful works. Pre-AWCPA copyright gave architects the right to prevent copying of architectural drawings into new drawings. But architects could not prevent (or at least most thought they could not prevent) the making of derivative works from those drawings in the form of constructed buildings, nor could they prevent copying of the constructed buildings into new drawings or other constructed buildings. This form of protection was unusual not only because it was, as Collins memorably puts it, “runtish” by comparison to the protection afforded other works, but because it was essentially a “defeasible” right, lost upon the construction of a building that embodies the architectural work. (P. 6.)

All of that changed, of course, with the AWCPA, which now extends full copyright protection to architectural works, save for a couple of unique limitations to the scope of those rights in § 120. Most scholars have viewed this expansion of architectural copyright through the lens of the familiar incentive-access paradigm. Advocates of stronger protection lament pre-AWCPA protection, arguing that it failed to incentivize the creation of architectural works. Critics, on the other hand, focus on the costs of broad protection, arguing that few incentives are needed for architectural creativity, and that strong protection can only inhibit creativity by limiting follow-on creators’ access to existing works. The minimalists therefore favor weak to non-existent rights in architectural works.

Collins largely agrees with the minimalists, on both the incentive and access points. As Collins points out, there are plenty of incentives for design-minded architects even without protection against copying of constructed buildings, and full copyright protection imposes significant costs, as the culture among design-minded architects embraces inspirational use of existing works.

But as Collins persuasively argues, the incentive/access debate, focused as it is on the justifications for full copyright protection, misses something important. In particular, discussion along the incentive/access dimension has difficulty explaining or justifying the particular form of pre-AWCPA protection. For while that law surely was “weak” as compared to current law (and therefore preferable to current law, from the perspective of minimalists) the defeasible nature of the rights was a unique design that reflected a different set of considerations—namely concerns about disclosure of information between architects and their clients (the “owners”).

Here is where Collins’s deep knowledge of the architectural design process really pays off. As he explains, project delivery is commonly spread over several phases. Architects’ creative value is concentrated in the earlier stages, with later stages consisting of more commoditized, even if time intensive, work. Yet the standard payment structure in the industry spreads payment to the architects out over the phases of construction, deferring the majority of that compensation until the later phases. And, crucially, architectural clients typically have the right to terminate their contracts with the architects for convenience at any time. The misalignment between the stages at which design-minded architects add the most creative value and the timing of their compensation, along with clients’ ability to terminate at any time, creates a potential dilemma. Architects who do the high-value initial design work are exposed to a risk that clients will take the design work and replace them with other architects who, while possibly not as skilled in design, can do the more commoditized, later-stage work at lower cost. Knowing of this risk, architects might be reluctant to share their work with clients at an early stage. This is a twist on Arrow’s information paradox.

Pre-AWCPA copyright solved this paradox by giving architects the right to prevent copying of their drawings into other drawings. Because constructing a building requires detailed construction drawings, which are derivative works of the earlier-stage schematic drawings, and because actually constructing a building nearly always requires many copies of the construction documents, it is practically impossible to bring a project to fruition without legitimate access to the drawings. Thus, prohibition on copying of architectural drawings into other drawings effectively tied a client to the architect, assuming the client wanted to complete the project. (P. 42–43 n.1.)¹ Clients could always start over with a new set of original drawings, but doing so is much less attractive in later project phases because of the cost that will by then have been put into the project.

Full copyright protection could also solve this disclosure paradox, of course. But as Collins nicely demonstrates, the problem of disclosure is a different one from incentives, and the solution to the disclosure problem need not be the same. While conventional discussions of Arrow’s information paradox assume “that the intellectual property rights needed to resolve the information paradox and facility information exchange are the same rights that are needed to prevent free riding by strangers and alleviate a public goods problem,” in fact “the information paradox can only justify rights that last until the seller has received payment for the full value of the information.” (P. 39–40.) And there is much to be gained in recognizing the implications of these different theories, since defeasible rights are likely to be less socially costly. Indeed, the “hidden wisdom” of the defeasible nature of pre-AWCPA rights was that they were robust enough to solve the disclosure paradox, but limited enough to avoid the access problems that attend full copyright.

As he acknowledges, Collins’s case is a version of a commonly-told story of the efficiency of the common law. Pre-AWCPA copyright evolved uniquely, even as compared to other areas of copyright that would seem analogous, to fit the customary needs of design-minded architects. It is not clear that courts tailored these rights intentionally—in fact, the nature of pre-AWCPA rights seems best explained by a series of historical contingencies and a lack of political interest on the part of architects. But the question of courts’ intentionality is one I would be interested to see Collins address more directly.

In the end, the paper makes a strong case against one-size-fits all copyright. Determining how much protection, if any, should be accorded to particular types of works, and what form that protection should take, requires in-depth study of the particular context in which architects work and careful comparative institutional analysis.²

But Collins’s broader point is perhaps more important. Pre-AWCPA copyright suggests that, if the point of intellectual property rights is simply to overcome a disclosure paradox and facilitate information disclosure, then “something less than full-fledged intellectual property rights of the kind required to prevent free riding by strangers may be enough to fulfill that need.” (Collins, P. 17 n.1.) That is to say that one’s theory of copyright matters, not least because different theories imply different forms of protection.³ Too much legal scholarship assumes the opposite, reflexively treating different theories as substitute justifications for essentially static legal rules. Collins’s bigger contribution is thus a strong argument against one-size-fits-all theory.

Parody and Fair Markets

Oct 13, 2015 Jessica Silbey1 comment

In December 2011, the UK Intellectual Property Office commissioned the Centre for Intellectual Property Policy and Management at Bournemouth University to research the effects of parody on copyrighted works. Do parodies harm the market for the underlying work? How might we measure the economic effects of parody, as incentive depressors or engines?

UK copyright law does not contain an exception specifically covering parodies. The authors of the study perceive the UK copyright law as one of the most restrictive in seven jurisdictions surveyed (US, Canada, Australia, France, Germany, Netherlands, UK) with regard to parodies. By commissioning this research, the UK appears to be considering reform. The study concludes that changes loosening the reign of copyright over parodies would further copyright’s underlying purposes of creation and dissemination.

This research is one of the first of its kind to measure empirically the economic effects of parody on the underlying copyrighted work. It was conducted in three parts and this paper is the synthesis of the full research. The focus of the study was of music videos on YouTube and whether “commercial exploitation of original works is affected by the presence of parodies where they can be considered to be part of the same market.” (p. 5.) It also investigates the potential for parodies to be a source of growth for the UK creative economy. The study compares treatment of parodies in the seven jurisdictions listed above to discern core concerns of parody to copyright. At the end, the synthesis applies the distilled principles of parody exceptions to the empirical sample to discern potential effects on creative and distribution incentives.

To be sure, there are many limitations to the generalizability of this study beyond music videos. The authors recognize that all on-line media may not adhere to the same audience behavior or market patterns. And offline parody markets (traditional print media or some visual arts) are likely to present “unique dynamics.” (p. 6.)

Nonetheless, the findings from this study are worth serious consideration by those jurisdictions in which parody exceptions are weak. Further, this study provides fodder for argument that complementary production of creative works – be they parodic, satirical or merely derivative – are unlikely to undermine the incentive to create and disseminate the work because parodies rarely substitute for the original in the marketplace. Indeed, as the authors describe, complementary works, or works in conversation with original works, do not intend to substitute for the original work but to draw attention to both the original work and the new work, lifting both up to a larger audience for inspection and enjoyment.

The main conclusion from the study is that parody is a significant consumer activity in the music video marketplace (24 parodic videos for each original video of a hit single song on average); and there is no evidence of economic damage to musical video rights holders through substitution. In fact, the presence of parody videos correlates with larger audiences for the original.

The nine criteria the authors distilled from the seven jurisdictions applying a parody (or parody-like) exception do not easily align with the empirical conclusions of the study. (The primary data set was of 343 original music videos comprised of the top-100 charting music tracks from 2011.) For example, the first two criteria – that the parody be non-commercial and not have an adverse affect on the market for the original – are often at odds in the empirical data. The study concludes that an enforced “non-commercial” criterion would prohibit 31.1% of the sampled videos and 91% of the audience for all the music videos. That is a lot of content that could be enjoined were “non-commerciality” required for a parody exception! And yet, if the predominant factor for the exception was that the parody must not adversely affect the market for the original, only 0.5% of the sample and 0.2% of the audience would be prohibited. That leaves a lot of content freely distributable. (The authors concede drawing the line of “commerciality” broadly and still these numbers are startling.)

Similarly, if one enforced the factor that the parody “must not use more of the original than necessary,” 81% of the sample would be prohibited along with 76.7% of the audience. And if it was important legally that the parody be “directed at the work” (a “target” parody rather than a “weapon” parody), 65% of the sample would be barred along with 39% of the audience. By contrast, the factor that the parody “add some significant new creation” (be modestly transformative or evidence independent creativity) would prohibit only 20% of the sample and 18% of the audience.

These criteria and their application to the sample of music videos indicate that the jurisdictions applying them tend to overprotect copyrighted works in relation to whatever market harm the original works might suffer and threaten with injunction large amounts of significantly creative work that engages in cultural conversation with and before very large audiences. There appears to be little reason to prohibit parodies if these conclusions carry over to other genres of copyrighted works.

The last criteria are about personality or moral rights of the authors and they, surprisingly, align with the sample’s conclusions that would keep the parodies circulating. The criteria that the parody not harm the personality rights of the original author would leave freely distributable 98.5% of the sample to 77.2% of the audience. And the criteria that the parody acknowledge the source of the original covers 100% of the sample. Jurisdictions applying these criteria – which are not about market harms but about moral or emotional concerns related to authorship – should have no problem with the hundreds and thousands of parodies of copyrighted music videos on YouTube.

And yet the regulation of parody under copyright law remains an open question, especially in the EU and in the UK in particular. What this important study shows – and sets the stage for more such analysis – is that copyright holders and the creative economy generally need not be afraid of parodies. In fact, parodies should be embraced as good for authorship, good for audiences and good for the economy.

Copyright’s Family Law

Sep 4, 2015 David FagundesAdd a Comment

Of the many things that may cause us to admire an article, one is the author’s identification of a meaningful relationship between fields that had otherwise seemed entirely disparate. In the past year, two pieces—Tony Reese’s Be Careful Where You Die and Brad Greenberg’s DOMA’s Ghost and Copyright Reversionary Interests—identified just such a non-obvious nexus between a popular issue of great social importance (marriage equality) and a relatively obscure topic of great statutory technicality (termination of copyright transfers).

Both of these articles explore issues raised by two of copyright’s distinctive future interest provisions. Descendants of authors whose copyrights vested prior to 1978 are statutorily entitled, under certain conditions, to reversionary interests in those copyrights. And heirs of any authors stand to inherit the inalienable right to terminate transfers established by the Copyright Act of 1976. The trick, in each case, is that the heirs who enjoy these potential future interests—typically, the surviving spouse and children—are determined by statute, regardless of an author’s estate plan or preferences to the contrary.

The marriage equality implications of these provisions that both Greenberg and Reese note is that in a country where some states recognize same-sex marriage and others do not, same-sex partners of authors suffer a relative disadvantage. Since copyright’s future interest provisions tend to defer to state definitions of marriage, the couple’s celebration of a valid union in one state could still mean that the surviving partner would not be recognized as a “spouse” depending on the state of the other’s death.

Of course, after the Supreme Court’s decision in Obergefell v. Hodges, we no longer live in such a country. The Court’s eliminates many of the immediately pressing social concerns raised by both authors. (Though it does not, as Reese observes, eliminate them all. Same-sex marriage remains unrecognized in many foreign jurisdictions, so should a couple be domiciliaries of a nation that does not recognize their union, they may remain subject to unequal treatment.)

And while one might think that Obergefell brings down the curtain on the problems identified by Reese and Greenberg, a deeper look shows just the opposite: The marriage equality issue is just one valence of copyright’s largely unexplored family law. The Copyright Act’s future interest provisions privilege a particular view of traditional marital and family structures that operate to the detriment of any author, regardless of sexual orientation, who does not adhere to those traditional norms.

Copyright’s familial structures work well for those who are in happy, traditional nuclear families. If you have an opposite-sex spouse and some kids, and you want them and only them to get your copyright-related future interests (e.g., termination rights or reversionary interests), the statute locks in that preference. But if you are not a member of a traditional nuclear family, securing these interests for those you care about is more complicated. These difficulties may no longer disproportionately burden same-sex couples, but it still works to the detriment of, say, authors who are in committed opposite-sex relationships that have not been memorialized by state-sanctioned marriage. Authors who simply choose not to pursue romantic relationships at all would similarly find themselves at a relative disadvantage, while copyright’s familial assumptions are simply incoherent as applied to the polyamorous (the Act’s use of “surviving spouse” is conspicuously singular). Copyright’s presumptions about family and author preferences may also work to the detriment of authors’ interests even when the author does fit into social norms about matrimony and reproduction. If you have a miscreant kid whom you don’t trust to take care of his part of your literary estate, or a beloved niece who you want to take charge of your literary estate, you’re out of luck: The Copyright Act entitles all an author’s children to a share of her reversion copyright or termination rights (and excludes more distant blood relations), regardless of whether that descendant is included in or disinherited by the author’s will.

Yet as Reese notes in the normative section of Be Careful Where You Die, it’s easier to point out these problems than to remedy them. The whole point of including family-friendly statutory overrides of an author’s testamentary intent was to make sure that the purpose of copyright termination and reversion was not undermined by having authors just devise their future interests to assignees and licensees. This is the bigger issue that is signaled in, but not resolved by, both articles: Does rendering an author’s posthumous rights inalienable requires picking some individuals who will benefit from those rights? Or is there some other statutory structure that would maintain inalienability without disadvantaging authors who do not adhere to a standard hetero- and repro-normative lifestyle?

Like all good work, Anthony Reese’s Be Careful When You Die and Brad Greenberg’s DOMA’s Ghost push readers to ask hard questions that lack easy answers. I was first drawn to these pieces by the novelty of their core insights about the rarely examined nexus between marriage equality and termination of copyright transfers. But Reese’s and Greenberg’s thoughtful analyses do more than just call attention to a doctrinal issue that has been largely (if not entirely) resolved by Obergefell. By shining a light on the underexplored assumptions animating the Copyright Act’s provisions instantiating and privileging a particular vision of the family, both articles open the door to investigations of the entanglement of copyright and family law beyond marriage equality.

A Pluralistic Vision of Incentivizing Innovation

Jul 20, 2015 Ted SichelmanAdd a Comment

In the 19th century, legal scholarship focused on legal doctrine. In the 20th century, legal scholars began to examine the policy effects of legal doctrine, paying particular attention to how changes in doctrine could yield better policies. Now, such policy-oriented approaches are cemented into nearly every U.S. law review article. Although this shift has in my view generally been beneficial, it still suffers from a doctrinal myopia: legal scholars usually write about only the swaths of law they know well, often overlooking other strands of law that are quite pertinent to the policy issues being addressed.

For example, although patent law scholars frequently opine about the nuances of patent doctrine and how changes in those nuances may affect innovation incentives, they have often ignored how other available policy tools—such as grants and government prizes—affect innovation. Although there is certainly law that deals with grants and prizes, it is rarely the subject of litigation and is fairly specialized (hence, occupying the minds of a small number of lawyers). None of it is taught in law schools. As such, law professors tend to know (and write) little about it.

On the other hand, economists who write about innovation tend to consider all of the available policy tools. Thus, there is a substantial literature in economics on grants and prizes. Yet, from a legal scholar’s perspective, most of this literature is too broad-brush, as it tends to abstract away from important legal nuances. Generally, economists either don’t examine in sufficient detail how changes in the law can impact policy, or else (at least in the absence of a law professor co-author), offer overly simplistic legal analysis.

Recently legal scholars, drawing from discussions in the economics literature, have applied more rigorous analysis to various policy tools not typically examined in the legal literature. In the field of patent law, several articles have explored the interaction between patents, prizes, and grants.

Oddly, none have explored in any detail the tax deductions and tax credits undertaken for R & D. Hemel and Ouellette make an impressive contribution by considering from a rigorous legal perspective this important—and otherwise overlooked—driver of innovation. This lacuna in the literature is even more shocking because, as the authors point out, the U.S. government spends tens of billions of dollars each year merely in R & D tax credits, plus surely tens of billions more in general deductions for R & D expenditures.

What is most valuable about Hemel and Ouellette’s paper is their “compare-and-contrast” analysis of the four main policy tools—patents, prizes, grants, and tax credits—used to promote innovation. Importantly, and in contrast with some recent works on prizes by others in the field, they properly recognize that there is generally “no free lunch” in the innovation game. As such, all of the policy alternatives tend to be costly.

My favorite example of theirs on this score regards an innovative drug for baldness. With some basic assumptions, they show that the number of potential consumers priced out from purchasing the drug is exactly the same under a patent and prize regime, as long as the specific users are taxed in order to pay for the prize. One can extend this example. Even if the prize amount is generated from taxpayers as a whole, this leads to a mandatory insurance system of sorts for innovation. The marginal additional tax paid by each person represents the premium charged for the right to purchase a “needed” innovation of interest at marginal cost. Of course, such a regime—as well as one premised on grants, tax credits, or patents—all lead to similar “deadweight losses,” at least from the ideal perspective in which innovation appears out of thin air.

Importantly, Hemel and Ouellette also contrast these policy tools, engaging in a sophisticated analysis of ex ante vs. ex post trade-offs, cross-subsidization, racing, coordination, risk, and administrative costs. Of course, this sort of discussion could occupy several lengthy books, and one cannot fault the authors for not considering every nook and cranny of these important topics. Instead, they have displayed in consummate fashion how such analysis should and could occur on a more detailed level.

On a broader level, Hemel and Ouellette’s analysis shows that legal scholarship—and to some degree, legal pedagogy—ought not to solely concern itself with a narrow set of legal doctrines as the means to policy ends. Rather, it should strive to consider a range of legal and non-legal options that are related by achieving a common goal—for instance, innovation.

In other words, merely considering one’s own realm of expertise—at least in a broad, policy-driven article—will tend to be myopic, resulting in an incomplete analysis. Of course, such a view implies that co-authoring (e.g., one expert in patent law, another in antitrust, another in tax, another in economics, etc.) will often be essential. Writing in larger and larger groups will certainly be a tough transition, individually and institutionally. Nonetheless, the sciences learned this valuable lesson many years ago. As Hemel and Ouellette have shown us, now it’s our turn.

Estimating the Value of the Public Domain

Jun 17, 2015 Christopher J. Buccafusco1 comment

By now, most Jotwell readers will be familiar with the terrific empirical research that Paul Heald has been doing on the public domain. Now, Paul has teamed up with Kristopher Erickson and Martin Kretschmer, scholars at the University of Glasgow and the CREATe centre (which stands for Creativity, Regulation, Enterprise, and Technology). CREATe is a publicly funded multi-disciplinary program that provides research support to produce evidence-based assessments of IP policies—something I think we can all agree that we like lots.

Heald, Erikson, and Kretschmer (HEK) have recently posted a new paper that presents a section from CREATe’s larger empirical project on copyright and the value of the public domain. I strongly recommend the entire report, which includes two separate empirical studies, but will focus my comments on the shorter paper.

The authors begin by noting that copyright owners have become adept at offering quantitative assessments of the economic value that copyright industries produce. Although there are numerous estimates of the value of copyright law, there are, however, very few attempts to measure the economic value of the public domain. HEK’s paper begins to balance the ledger by estimating the value of a robust public domain for creative reuse.

To do so, the authors modify and extend a technique that was recently introduced by Abishek Nagaraj at MIT. The basic idea is to analyze Wikipedia pages for the use of photographs where the availability of photographs is affected by the public domain. HEK study the use of photographs of successful literary authors on their Wikipedia pages.

The sample includes 362 authors who had at least one New York Times bestseller from 1895 to 1969. The authors were born between 1829 and 1942 and, thus, span the 1923 public domain/copyright divide. Authors who were born and died before 1923 can only be represented by public domain images; authors born after 1923 can only be represented by copyright-eligible images; and authors whose lives span the divide can be represented by both. HEK hypothesize that, despite the many fewer images that exist of earlier authors, those authors’ pages will be more likely to include an image than later-born authors’ pages. This is because the public domain images can be freely used, but the copyrighted images likely have to be licensed.

Their results support this hypothesis. While authors born after 1920 have about an even chance of being represented by a photo on their Wikipedia pages, authors born between 1850 and 1880 have about a 90% chance of being represented by a photograph. The difference, according to the authors, is the much larger set of freely available images for the older authors.

This finding alone would provide significant evidence of the value of a robust public domain. But HEK want to go further to estimate the extent to which the addition of photographs on Wikipedia pages represents social welfare. First, they consider what it would have cost Wikipedia to license the public domain images. The same or similar images could have been licensed from Corbis or Getty for about $120 each, so HEK estimate that the Wikipedia page builders saved $77,400 over a five-year period. Extrapolating to Wikipedia as a whole, this would amount to a savings of about a quarter of a billion dollars per year.

HEK also attempt to estimate the social value added by the public domain images by comparing the number of page views for pages with and without photographs. The inclusion of photographs increases traffic to webpages (although the precise mechanism isn’t spelled out clearly), and increased traffic means increased advertising revenue (at least to pages that accept ads). The authors measure changes in page views from 2009 to 2014 for those authors who had an image added to their pages after 2009 and for those that did not. Presumably, this should help isolate the draw of the image. HEK estimate that the addition of an image increased page views by 19% during their sample period. Each additional page view is worth about $0.005 in additional ad revenue, so again HEK attempt to assess the hypothetical revenue that Wikipedia could be making based on its use of public domain images. They calculate that the increased traffic to Wikipedia from public domain images is worth about $38 million per year.

HEK conclude by offering policy recommendations regarding the harm of copyright term extension and the value of orphan works legislation. While these suggestions are important, the greatest value from this project, and the others that CREATe is producing, is the richer picture of the copyright landscape that they provide. When the next round of copyright legislation begins, both sides will be armed with quantitative figures about costs and benefits.

Finally, in the spirit of further encouragement and next steps, I would like to see more sophisticated analysis of the data, including regression analysis of the initial data set. HEK’s claims about the data would be bolstered with a fuller impression of the effects of each of their variables. Additionally, to deal with endogeneity problems associated with the existence of photographs and other variables, the authors could consider approaching the problem experimentally by randomly assigning different Wikipedia pages to receive a photograph. This might provide greater explanatory power about the relationship between images and page views.