Linking legal scenarios to empirical data: process- tracing as a methodology in law

Since 2007, the Dutch public service broadcasting archive Sound and Vision (NISV) has successfully digitised large sections of its TV broadcasting material. However, only a very small portion of these is currently accessible online. The main stumbling block proved to be the complexity of the copyright environment relating to broadcasts. To make a broadcast available online, the permission of the right holder under copyright law and related rights is required. However, depending on the circumstances in which the broadcast was made, each broadcast can potentially have a large number of different right holders. In other words, there are a number of distinct legal scenarios, each with its own pattern of copyright ownership. Up to now, the legal literature has not been able to systematically bridge the gap between the theoretical legal options and industry practice. The resulting uncertainty about copyright ownership patterns in turn led to a de facto freeze on efforts to make materials accessible online. This article demonstrates how this gap can be addressed by drawing on methodological developments in the social sciences. It shows how it is possible to link distinct legal scenarios to industry practice by using a methodology called process-tracing to examine empirical evidence in a systematic manner.