The Society for Economic Research on Copyright Issues

Review of Economic Research on Copyright Issues (RERCI)

RERCI Articles

Collective Management of Music Copyright in China: Insights for the Regulation of the Monopolistic and Monopsonistic Power of the Music Copyright Society of China from a Comparative Legal Approach

Review of Economic Research on Copyright Issues, vol. 17(2); 23-52

Qinqing Xu


Abstract

This paper discusses the regulations which limit the monopolistic and monopsonistic power of the Music Copyright Society of China (MCSC) in the context of the broader legal framework for the collective management of music copyright in China. The paper identifies "inadequate regulation" as a major cause of the misuse of such market power by the MCSC. Using a comparative approach, the paper analyses the regulatory regime that addresses the abuse of the market power of the American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music, Inc. (BMI), the two oldest performing rights organisations (PROs) in the United States. Drawing lessons from the United States experience, this paper challenges the notion that establishing more musical collective management organisations (CMOs) in China would decrease the monopolistic and/or monopsonistic power of the MCSC. While the Chinese Anti-Monopoly Law cannot be applied to regulate the market power of the MCSC, this paper advocates for improving the current Regulations on Copyright Collective Administration (RCCA) as an alternative option for preventing the misuse of power by the MCSC.

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Figuring It Out: Applying economics to copyright royalty rates for streamed music

Review of Economic Research on Copyright Issues, 2020, vol. 17(2), pp. 1-22

Ruth Towse


Abstract

Economists are often, even regularly, used as consultants to the various parties involved in the process of regulating copyright and as witnesses in court procedures to set royalty rates. What insights from economic analysis do they offer? Are their contributions widely accepted or controversial? The article offers two case studies relating to streamed music: the US Copyright Royalty Board (CRB)’s judgement on Phonorecords III, and the discussion on ‘usercentric’ versus ‘pro rata’ methods for distributing music streaming royalties by CMOs. Both clearly demonstrate the conflict between efficiency and equity principles; however the main focus of the article is the extent to which ‘platform economics’ was adopted in the discussions of music streaming and how, if at all, that approach influenced procedures.

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Compulsory licensing for radio-play of music in India: Recent history and economic context

Review of Economic Research on Copyright Issues, 2020, vol. 17(1), pp. 60-77

Megha Patnaik


Abstract

Compulsory licensing of sound recordings is practiced in different countries, though the trajectories and rationale for arriving at this framework may differ. Developing countries often introduce measures to protect "infant" industries, but policy persistence can make subsequent changes hard. In 2010, the Copyright Board of India passed an order prescribing 2% of net advertising revenues to be paid by radio stations as compulsory license fees to copyright owners, citing the infancy of the private radio industry and the lack of access to music in India. Since the original order, the private radio industry has matured in size, coverage and listenership. Access to music today is facilitated through a far-reaching radio network, as well as widespread mobile and internet usage. The original order will be reviewed in September 2020. Given the maturation of the private radio industry over the past decade, this paper recommends India transitioning to the perspective considered for countries with mature radio industries. But how can the regulator determine the fair price of music closest to that found in a competitive market? Several strategies demonstrated in the literature can be used to establish a baseline valuation, following which adjustments can be made to account for any spillovers between the two industries.

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Competitive Strategy of Proprietary Software Firms in an Open Source Environment

Review of Economic Research on Copyright Issues, 2020, vol. 17(1), pp. 38-59

Edmond Baranes, Cuong Hung Vuong and Mourad Zeroukhi


Abstract

This paper analyzes the competitive strategy of a proprietary software (PS) firm in the presence of open source software (OSS) where the copyright holder has granted software users access and use of OSS without any obligation regarding source code disclosure and royalty payments. The OSS is developed by volunteer programmers, while the firm incurs costs to hire programmers to build the PS. The firm has a quality advantage because, first, it can provide professional technical support and promotion, and second, it is difficult for the OS community to collaborate for the production and maintenance of the OSS. The analysis is based on two scenarios: (1) the OSS is available free of charge; (2) the OSS is distributed by fringe vendors who can provide OSS quality upgrades. We find that both types of software can coexist in equilibrium. Furthermore, despite the fact that PS enjoys a quality advantage, it will optimally set a lower quality than OSS. The comparative statics show that a change in each market parameter can lead the firm to simultaneously increase (or decrease) both the PS price and quality. We consequently evaluate the impact on the firm's profit and consumer surplus.

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Accounting for Creativity: Lessons from the Economic History of Intellectual Property and Innovation

Review of Economic Research on Copyright Issues, 2020, vol. 17(1), pp. 1-37

B. Zorina Khan


Abstract

Social progress depends on the realization of inventive ideas, and economic history provides valuable lessons about creativity in technology and culture. The empirical study of over one hundred thousand innovative individuals who obtained patents, copyrights, and prizes, sheds light on the relationship between institutions, incentives, and transformative ideas and expression, over the past two centuries. The European growth model assumed useful knowledge was scarce, and top-down administered innovation systems offered rights and rewards to "exclusive" groups. By contrast, American policies regarded creativity as widely distributed in the general population, and further promoted "inclusive" market-oriented mechanisms that fostered diversity in ideas and outcomes. The evidence suggests that property rights in patents facilitated markets in ideas, and ensured that returns were aligned with productivity and market demand. Whereas, such administered systems as innovation prizes and publisher's copyrights in the "creative industries" benefited the few rather than overall social welfare.

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Music-Use Tariffs, Options, Regulation and Bargaining

Review of Economic Research on Copyright Issues, 2019, vol. 16(1/2), pp. 40-67

Frank Mathewson, E. Jane Murdoch and Gerry Wall


Abstract

This paper discusses the connection between rate regulation and bargaining out- comes. We consider the case of licensing musical works for radio broadcasting. Our model illustrates the impact when music broadcasters can switch to a talk format. Using a generalized Nash bargaining setting, we interpret the revenue sharing rules established within the regulatory regimes in the US and Canada. In any negotiations over a sharing rule with the collectives that own the musical works rights, the ability of broadcasters to switch from a music to a talk format constitutes the threat point for the broadcasters. Using US and Canadian data for 2014 and 2015, we derive the bargaining weights that would generate the same revenue flows for broadcast- ers and collectives as those produced under the shadow of a copyright regulatory regime. These numerical examples show a higher weight to collectives than appears from the stated tariff rates.

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The U.S. Copyright Termination Law, Asymmetric Information, and Legal Uncertainty

Review of Economic Research on Copyright Issues, 2019, vol. 16(1/2), pp. 1-39

Michael Karas


Abstract

This paper investigates the conflict between authors and their publishers that occurs as a result of publishers using an ambiguous “work made for hire” clause to sue the author for copyright infringement. A Bayesian signaling model allows a publisher to send an informative signal to the uninformed author that includes his reaction towards a license termination to induce termination deterrence. The model is used to examine the effectiveness of the statutory intervention. The results reveal that complete termination deterrence is an equilibrium outcome only if a publisher sues with certainty. The mere threat to sue is not sufficient for complete termination deterrence. Under most parameter settings, the results indicate positive termination probabilities. The highest probability for a neutral publisher type is obtained in situations where an author has weak outside options or is strongly dependent on his publisher. An author with valuable outside options increases the probability that a publisher will threaten to pursue legal action. If courts tend to favor authors, then termination incentives increase, which may lead to more friction between authors and their publishers.

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Indirect Copyright Infringement Liability for an ISP: An Application of the Theory of the Economics of Contracts under Asymmetric Information

Review of Economic Research on Copyright Issues, 2018, 15(2), 57-79

Richard Watt and Frank Mueller-Langer


Abstract

Under current copyright law in many countries, Internet Service Providers (ISPs) can be found liable for the traffic on the websites that they host. While the ISPs themselves are not undertaking acts that infringe copyright, indirect liability asserts that they either contribute to, or encourage in some way, infringing activities, and thus they are liable to claims of indirect involvement by the affected copyright holders. The present paper explores indirect liability in a standard principal-agent setting, where both moral hazard (the act of monitoring) and adverse selection (differential costs of monitoring over ISPs) are present. The model considers the kinds of contracts that could be signed between the copyright holders (acting through a collective) and the ISPs (acting individually). We specify the contracts that are self-selecting and incentive compatible for the set of feasible scenarios.

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Truce in the Copyright War? The Pros and Cons of Copyright Compensation Systems for Digital Use

Review of Economic Research on Copyright Issues, 2018, 15(2), 23-56

Christian W. Handke, João Quintais and Balázs Bodó


Abstract

This paper discusses copyright compensation systems (CCS) -- that provide licenses for downloading and non-commercial use of copyright works in return for a fee -- in the light of welfare economics and transaction cost economics. Recent empirical studies suggest that CCS could improve social welfare at least for recorded music. The general theme of the theoretical discussion in this paper is a simplicity-flexibility trade-off. On the one hand, CCS seek to reduce the costs of administering and trading copyrights online. On the other hand, standard copyright licenses distort the market mechanism. This paper discusses the costs and benefits of various CCS proposals compared to alternative ways of managing copyright online.

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Getting Pricing Right on Digital Music Copyright

Review of Economic Research on Copyright Issues, 2018, 15(2), 1-22

Joshua S. Gans


Abstract

This paper provides an overview of economic approaches to the pricing of mechanical royalties for copy-protected music works. It argues that principles for such pricing can be provided usefully from principles of pricing access to essential facilities. In particular, the structure of the royalty should be such that the royalty level does not change if the business model of downstream entities (notably, digital music streaming platforms) changes (i.e., neutrality) and the level of the royalty should ensure that the copyright holders receive a return in excess of their next best alternative in reaching consumers (i.e., opportunity cost). Ways of using benchmarking to derive the relevant opportunity cost are then discussed including the use of methods inspired by economic bargaining approaches such as the Shapley Value.

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Intellectual Property Regulation and Software Piracy: A Dynamic Approach

Review of Economic Research on Copyright Issues, 2018, 15(1), 38-64

Michael D'Rosario


Abstract

Promoting Intellectual Property Rights (IPRs) is of particular importance to nations engaging in significant innovation. The existing literature relating to software piracy research is typified by the use qualitative methods to analyse the impact of IPRs on software piracy. Most concern themselves with a handful of important macroeconomic factors in an effort to identify whether they possess any explanatory power, employing qualitative frameworks for analysis. More contemporary research has given greater attention to the role of key regulatory variables on software piracy using econometric methods. In this paper, the relationship between foreign political pressure, IPR regulatory reforms and software piracy is considered. We estimate a model of software piracy as a function of bi-lateral pressure and investment (where US 301 reporting is the proxy for bilateral pressure, and capital investment the proxy for bi-lateral investment), Scientific investment, trade dependence and government effectiveness. The models are estimated using data from 80 countries over nine years. The study responds to the dearth of research employing dynamic panel estimations in estimating the impact of IPR reforms on software piracy. The findings suggest out of cycle review and US 301 reporting are pertinent factors potentially moderating software piracy.

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Language, Copyright and Geographic Segmentation in the EU Digital, Single Market for Music and Film

Review of Economic Research on Copyright Issues, 2018, 15(1), 20-37

Estrella Gomez Herrera and Bertin Martens


Abstract

The EU seeks to create a seamless online Digital Single Market for media products such as digital music and film. The territoriality of the copyright regime is often perceived as an obstacle that induces geographical segmentation. This paper provides empirical evidence on the extent of market segmentation in the EU on the supply side and measures the contribution of several drivers of this segmentation. We use data from the Apple iTunes country stores in 27 EU Member States. We find that availability of EU media products across country stores in the EU is hovering around 80 per cent for music and 40 per cent for films. Recent industry initiatives to reduce the transaction costs of making digital music available across borders have resulted in a reasonably wide availability though still short of the 100 per cent mark. Supply side factors including copyright-related trade costs probably still play a role in music though we can only infer this indirectly in the absence of data on copyright licensing arrangements at product level. Commercial strategies and territorial restrictions in distribution agreements reduce film availability, more so than copyright issues. We also find evidence of price differentiation across iTunes EU country stores.

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The Relative Effectiveness of Global Anti-Piracy Policies

Review of Economic Research on Copyright Issues, 2018, 15(1), 1-19

Tylor Orme


Abstract

In recent decades, the problem of illegal downloading of copyrighted material has emerged as a major concern for governments across the globe. Many countries have implemented policies to limit the impact of online piracy on revenues of creative industries. These policies, while important for a broad range of industries, have been particularly lobbied for and supported by the motion pictures industry. Film production and distribution companies have repeatedly asserted that effective anti-piracy policy is crucial to their continued success. This paper seeks to evaluate whether the anti-piracy regimes in OECD countries have been effective. It also seeks to determine whether there are patterns to the types of policies that have been especially effective or ineffective.

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Exploring a Better Design of Copyright Law

Review of Economic Research on Copyright Issues, 14(2), 55-80, 2017

Shinya Kinukawa


Abstract

This study proposes a simulation model aimed at exploring how copyright law should be designed; that is, a desirable combination of copyright length and breadth. The model incorporates the specific properties of creative industries but is hard to deal with analytically because of its dynamic characteristics. Changes in social welfare under different copyright designs are thus examined by using numerical simulation. The simulation results reveal that a short and narrow copyright is the best, whereas a long and broad copyright is the worst. Moreover, in the long run, a long copyright can reduce social welfare even if the breadth is narrow.

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Remarks to the SERCI Panel on Regulatory Copyright Tariff Setting

Review of Economic Research on Copyright Issues, 14(1/2), 45-54, 2017

Gerry Wall


Abstract

This Panel concerns possible lessons for European copyright practitioners learned from the North American experience. I pose two key questions that arise from our existing copyright tariff setting processes: 1) do we need regulatory intervention to achieve appropriate prices?; and 2) how has the process worked so far and how can we make the process better?

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