Distribution’s Diversity and Fairer Uses: A Qualitative Analysis of Borrowing Practices in Creative and Innovative Industries

Authors: Jessica Silbey (Northeastern University School of Law)

Abstract
Based on a qualitative interview study with a range of copyright professionals (both creators and intermediaries), I report on the variety of ways they describe disseminating their work and the reasons for doing so. I will catalogue the five primary ways of disseminating work – some which align with copyright protection and many that do not – and then I suggest some repercussions from the significant misalignment between copyright tools and creative practices for law enforcement and law reform. Because the diversity of ways and reasons for dissemination suggest an ill-fitting IP regime, there is concern that current copyright enforcement mechanisms may overprotect creative and innovative work to the detriment of access that builds businesses and professional reputation, second-generation creators and innovators, and a robust public domain. Studying in more granular ways the forms distribution takes, its reasons, and the particular industries and actors that engage in the varied distributional mechanisms also has implications for fair use determinations (ex-ante and ex-post); exception and limitation law reform (where more accurate bright line rules could be drawn); the scope of the derivative work right in copyright law; and compulsory licensing practices.

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