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The Relationship between Copyright and Contract Law

M. Kretschmer, E. Derclaye, M. Favale, R. Watt, The Relationship between Copyright and Contract Law: A Review commissioned by the UK Strategic Advisory Board for Intellectual Property Policy (SABIP), 2010

182 Pages Posted: 30 Jun 2015  

Martin Kretschmer

University of Glasgow

Estelle Derclaye

University of Nottingham, School of law

Marcella Favale

Bournemouth University; University of Glasgow

Richard Watt

University of Canterbury - Economics and Finance; The Society for Economic Research on Copyright Issues (SERCI)

Multiple version iconThere are 2 versions of this paper

Date Written: 2010

Abstract

Contracts lie at the heart of the regulatory system governing the creation and dissemination of cultural products in two respects: (1) The exclusive rights provided by copyright law only turn into financial reward, and thus incentives to creators, through a contract with a third party to exploit protected material. (2) From a user perspective purchases of protected material may take the form of a licensing contract, governing behaviour after the initial transaction.

Thus, a review of the relationship between copyright and contract law has to address both supply- and demand-side issues. On the supply side, policy concerns include whether copyright law delivers the often stated aim of securing the financial independence of creators. Particularly acute are the complaints by both creators and producers that they fail to benefit from the exponential increase in the availability of copyright materials on the Internet. On the demand side, the issue of copyright exceptions and their policy justification has become central to a number of reviews and consultations dealing with digital content. Are exceptions based on user needs or market failure? Do exceptions require financial compensation? Can exceptions be contracted out by licence agreements?

This report (i) reviews economic theory of contracts, value chains and transaction costs, (ii) identifies a comprehensive range of regulatory options relating to creator and user contracts, using an international comparative approach, (iii) surveys the empirical evidence on the effects of regulatory intervention, and (iv) where no evidence is available, extrapolates predicted effects from theory.

Keywords: Copyright, contract, royalties, exceptions

JEL Classification: O34, K00, L82

Suggested Citation

Kretschmer, Martin and Derclaye, Estelle and Favale, Marcella and Watt, Richard, The Relationship between Copyright and Contract Law (2010). M. Kretschmer, E. Derclaye, M. Favale, R. Watt, The Relationship between Copyright and Contract Law: A Review commissioned by the UK Strategic Advisory Board for Intellectual Property Policy (SABIP), 2010. Available at SSRN: https://ssrn.com/abstract=2624945

Martin Kretschmer (Contact Author)

University of Glasgow ( email )

10 The Square
Glasgow, G12 8QQ
United Kingdom

Estelle Derclaye

University of Nottingham, School of law ( email )

Nottingham NG7 2RD
United Kingdom

HOME PAGE: http://www.nottingham.ac.uk/law2/staff/estelle.derclaye

Marcella Favale

Bournemouth University ( email )

Fern Barrow
Poole BH12 5BB, Dorset BH8 8EB
United Kingdom

HOME PAGE: http://https://microsites.bournemouth.ac.uk/cippm/2014/05/13/marcella-favale/

University of Glasgow ( email )

Adam Smith Business School
Glasgow, Scotland G12 8LE
United Kingdom

Richard Watt

University of Canterbury - Economics and Finance ( email )

Private Bag 4800
Christchurch
New Zealand

The Society for Economic Research on Copyright Issues (SERCI) ( email )

Apartado de correos 1100
Palma de Mallorca, 08080
Spain

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