How 'Fair' is Self-Published Fanfiction? A Mixed Methods Law & Economics Study

Lead Research Organisation: University of East Anglia
Department Name: Law

Abstract

This research aims to evaluate whether the fair dealing/fair use exceptions for copyright infringement can be used to cover fanfiction works. These exceptions (s29-30 Copyright Designs & Patents Act (CDPA) 1988/s107 US Copyright Act (USCA) 1976) ensure that copyright works deemed to be infringing but that have a 'fair' reason behind them can be published, and allow for social consideration regarding whether the copying was 'fair' to be argued before the court. Fanfiction is created by fans of the underlying work, who rewrite stories using characters and locations from other media works such as TV shows, books or films. It is not a new type of work, but due to the operation of the Internet it has increased in popularity and can be published on websites such as Fanfiction.Net and read all over the world. Previously it has been published for free online meaning most copyright owners have decided not to pursue infringement cases, however there is an increasing number of fanfiction works such as Fifty Shades of Grey that start as fanfiction before being pulled offline, slightly altered to remove direct copyright infringement and published for profit. This work will focus on the economic effect of fanfiction on the current and back catalogue of works of the original author, in order to prove whether there is a need for a protective IP right such as copyright to apply, and if so whether fanfiction infringes copyright in the underlying work as has been presumed thus far, and also whether there is a measurable effect on the demand for future works by the same author. If the effect on future demand is more noticeable, it could be argued that the protection should be provided instead by the more commercial trade mark law. There must be a congruent analysis into both the effects of other forms of self-published fiction and ebooks, in order to prove that the results found are not due to the self-published nature of the works or their electronic nature. This will be mixed methods research incorporating doctrinal, empirical and quantitative methods in order to thoroughly test my hypothesis that fanfiction should be held to come within a fair dealing exception. This research will undertake empirical research in order to investigate the awareness of users of both fanfiction and the copyright law exceptions that may apply. This will enable me to argue whether, if fanfiction is covered by fair dealing at present, it may also need a specific exception to cover it in order to clarify any misconceptions and information failures that may act as barriers to entry onto the market. Summary of Research Aims:
To examine the effectiveness of the fair dealing copyright exception in the digital single market;
To consider, in particular, the effect of fanfiction on the market for fiction;
To analyse the amount of fanfiction online in comparison to standard and self-published fiction;
To explore the reasons people create and consume fanfiction online and whether licensing would be an effective method of regulating this; To understand the responses of readers, authors and publishers to fanfiction;
To develop recommendations for effective copyright protection of transformative works of fiction.
Bibliography
Interlego AG v Tyco Industries Inc [1989] AC 217 University of London Press v University Tutorial Press Ltd [1916] 2 Ch 601
Copyright Designs and Patents Act 1988 Directive 2001/29/EC of the European Parliament and the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society US Copyright Act 1976

Studentship Projects

Project Reference Relationship Related To Start End Student Name
ES/P00072X/1 01/10/2017 30/09/2027
1936804 Studentship ES/P00072X/1 01/10/2016 30/09/2019 Ruth Elizabeth Flaherty
 
Description The most significant achievements from this award are the doctrinal recommendations: most literary characters do attract their own copyright under the current case law, and therefore fanfiction that reuses characters is an infringing derivative use of the work. However, fanfiction as an example of user-generated content written as non-commercial homage, should be permitted under the UK fair dealing exception for pastiche under s30A Copyright Designs and Patents Act 1988, as this thesis suggests that the economic harm being caused to the fiction market cannot empirically be connected to the existence of fanfiction - either at a macro level or a micro level - due to the transformative nature of this form of derivative work.

These recommendations have yet to be finalised as the award is still within its writing up period. The research aims that will be met by the end of the project are:

To examine the effectiveness of the fair dealing copyright exception in the digital single market;
To consider, in particular, the effect of fan fiction on the market for fiction;
To analyse the amount of fan fiction online in comparison to standard and self-published fiction;
To explore the reasons people create and consume fan fiction online and whether licensing would be an effective method of regulating this;
To understand the responses of readers, authors and publishers to fan fiction;
To develop recommendations for effective copyright protection of transformative works of fiction.
Exploitation Route This research could be built on by further research using similar methodologies but applied to different fanfiction archives (such as Archive of Our Own). Alternatively, content analysis could be undertaken into the content of posts to develop the research into the importance of characters to copyright and to the derivative work (to further test how transformative the derivative works are).
Sectors Creative Economy,Digital/Communication/Information Technologies (including Software),Government, Democracy and Justice

 
Title Archive of posts to Fanfiction.Net 
Description This is a dataset of 6.8m lines of data across more than 10 variables, so all posts to Fanfiction.Net (an online fanfiction archive) from when it opened in 1998 to my data collection date in 2017. This database has been given ethical approval by the UEA, but I will need to confer with their ethics team again before releasing the dataset publicly. 
Type Of Material Database/Collection of data 
Year Produced 2017 
Provided To Others? No  
Impact This improves knowledge regarding the impact of these works on the fiction market, as well as the impact of copyright legislation on both the fiction market and the derivative works market.