otherwise acquire authorized access to copyrighted works for purposes of consuming and/or creatively building upon those works; people who undertake these activities in lawful accord with a copyright limitation or exceptions; people who undertake these activities in violation of copyright law; people who forgo these activities because of the risks and burdens that copyright law imposes; and people who use copyrighted works in ways that fall within areas of legal uncertainty. By “users” we do not only mean end-users but also commercial firms that make use of copyrighted works in the process of supplying other goods and services. With the data called for below regarding patterns of consumption of creative works, studies could be designed to better understand who falls in these various categories and why, and whether and how copyright influences their behavior. For example, it would be valuable to know more about how user motivations and behavior are affected by enforcement efforts—including the extent to which effective enforcement encourages users of infringing copies to turn to legal alternatives.
The exclusive rights that copyright law bestows on creators may be voluntarily transferred from creators to others through licenses on either exclusive or non-exclusive terms. This transferability is consistent with copyright’s purpose of promoting creativity for the public benefit. It allows creators to derive revenue from their investments in creativity while permitting others to use, disseminate, and build upon their works. Digital technology promises to expand authorized access and iterative creativity, but not if rights are not easily transferred because of transaction costs and other barriers to voluntary exchange. Where such impediments are significant, they may justify policy interventions aimed at facilitating transactions or adjusting aspects of copyright law. Successful examples of voluntary transactions, by contrast, might provide lessons about what works well in the current legal environment.
Questions about the extent and persistence of copyright-related transaction costs and related market failures have been raised and explored in both academic and policy analysis relying on case studies, interviews, and other types of qualitative evidence illustrating both copyright exchange failures and successes. To date, however, there have been few efforts at broad and systematic data collection to support policymaking.
Consider the transaction cost hurdles to voluntary exchange associated with “orphan works,” works for which the copyright holder cannot be readily identified or located for the purpose of entering into a voluntary exchange agreement. Even if the author and publisher are found,