Ophavsret og retsøkonomi i relation til brugerskabt indhold på Vix og YouTube: En komparativ analyse af dansk og amerikansk ret

Abstract

In this thesis the much debated issues of user-generated content on Vix and YouTube are analysed from a legal and an economic viewpoint. Even though the European Commission recognises the value of user-generated content, which is partly based on existing copyrights, an exception to the copyright holder’s exclusive rights does not yet exist. The purpose of the thesis is, therefore, to analyse which economic factors should be involved in a court’s ruling concerning extracts of pieces of music used in user-generated videos. The comparative study in chapter 3 of this thesis investigates if section 22 of the Danish Copyright Act regarding quotations and the American Copyright Act section 107 regarding fair use, can be used as means of exempting use of extracts of pieces of music used in user-generated videos on Vix and YouTube. It is found that there are substantial similarities between the factors used by courts to determine the legality of extracts of pieces of music in the two countries. There are, however also substantial differences. Firstly, the factors used in Denmark are cumulative and each of them can hence prevent use of extracts of pieces of music in user-generated videos. According to American law, all of the statutory factors included in section 107 should be evaluated, yet neither can determine the outcome in itself. Secondly, the fair use doctrine obligates courts to evaluate the economic effect of the use on the value or market for the original piece of music. This factor is not recognised in Danish law. Due to the differences between Danish and American law, it is argued in chapter 5, that use of extracts of pieces of music in user-generated videos will more often be allowed in USA. In the economic analysis of chapter 4 and 6, it is argued that parts of Scotchmer’s theory on cumulative research within patent law can be transferred to the area of copyright. Therefore a problem of double marginalisation is identified between multiple copyright holders. If this problem is not addressed by the courts when determining if extracts of pieces of music are allowed in usergenerated content, the incentives to create such works may be diminished and potentially valuable works would not be created. In conclusion, it is therefore argued that the Danish legislation and courts should include concern for two economic factors. Firstly the economic factor already known from the fair use doctrine and secondly a factor concerning the problem of double marginalisation.