Broad Coalition Of Public And Private Interests Call For Objective Data & Research Concerning Copyright Reform
from the good-to-see dept
One of the key things that has been a major concern to us for many, many years is how much of copyright policy tends to be driven by faith-based claims about what must be best (often this falls into the “more must be better” category), rather than any objective analytical look at actual data and evidence. We were encouraged when the UK’s Hargreave’s Report did start to look at some objective data when it sought to understand how best to reform copyright in the UK. And we’ve been hearing encouraging things out of Australia as well. With copyright reform back on the table in the US, and Congress seemingly open to the discussion, having reality-based policy discussions will be more important than ever.
That’s why it’s actually quite encouraging to see a new report from the US National Research Council that has begun the process of calling for more objective data to inform the upcoming copyright reform debate. You can get the full PDF via the National Academies Press for free. They have an embedding widget which we’ve placed below as well, though it uses Flash, which is a bit annoying. The effort was funded by a broad coalition of organizations with a variety of different views on the issue, so it’s not limited to just one particular view. For example, you’ve got copyright maximalist organizations like the MPAA and the BSA, but also Google and Pam Samuelson, who tend to take a different view on the appropriate level of copyright protection. There is also support from a number of different government and private foundations, including the National Science Foundation, the Alfred P. Sloan Foundation and the Ford Foundation.
The committee who put together this particular work also has a wide range of viewpoints covered, including Mitch Singer from Sony Pictures, former federal judge Marilyn Hall Patel who presided over the case against Napster, Chris Sprigman (law professor who wrote The Knockoff Economy: How Imitation Sparks Innovation and who has been featured prominently on Techdirt in the past) among a number of other big names with various viewpoints.
While the paper itself doesn’t have any answers yet, it does highlight the key questions that we should be trying to answer, and indicates the beginnings of some research being done in that direction, with the likelihood of more to follow. I am a little annoyed that they still refer to things like the public’s rights to access and use content as “exceptions” to copyright, because that feels unfairly limiting, but overall the direction of the work is quite encouraging. Here’s a list of some of the initial questions they note it would be good to answer, if possible, which gives you an idea of the research areas they’re interested in supporting and encouraging:
With respect to changing incentives for creators, distributors, and users, research could help determine
- how the expenses involved in creative expression and distribution differ across sectors and the role of copyright in generating revenues to offset those expenses;
- under what circumstances sources of monetary and/or non-monetary motivation outside of that provided by copyright are effective in motivating creative activity;
- the motivations of various types of users and potential users of creative works, including both infringers and lawful users; the effects of enhanced enforcement remedies on promoting creativity, technological innovation, and freedom of expression; and
- how the costs of distributing creative content are affected by social media and other new technologies.
With respect to the enablers of and impediments to voluntary licensing transactions in copyrighted works, research would help determine
- the significance of transaction costs as barriers to utilization of copyrighted works;
- the extent of problems involving orphan works (whose owners cannot be identified), user-generated content, and collaborative and iterative works;
- what are successful arrangements for managing transaction costs;
- the roles of public and private institutions in facilitating licensing;
- the relationship of transaction costs to legal rules such as compulsory licenses; and
- changes in transaction costs with new technological and business developments.
With respect to the enforcement challenges, research could help determine
- how much is spent by governments and private parties on copyright enforcement;
- against whom enforcement efforts are targeted and what remedies are sought and granted;
- the results of enforcement efforts in terms of compensation, prevention, education, and deterrence;
- how the effectiveness of enforcement efforts is changing with the expansion of digital networks;
- the costs and benefits of current enforcement methods vis-a-vis those associated with proposed new enforcement methods;
- the relative vulnerability of different business models to infringement; and
- the costs and benefits of fair use exceptions and the Digital Millennium Copyright Act (DMCA) safe harbors.
In assessing the balance between copyright protection and the statutory exceptions and limitations to copyright research could help determine
- the costs and benefits of copyright exceptions and limitations in terms of the economic outputs and welfare effects of those individuals, businesses, educational institutions, and other entities that rely on them;
- how copyright and the various categories of limits and exceptions interact with innovative and/or disruptive technologies and platforms; and
- what adverse effects, if any, exceptions and limitations have on copyright holders and their potential to generate economic outputs and welfare effects.
Eventually, research will help inform decisions about key aspects of copyright policy, including
- the appropriate scope of copyright protection;
- the optimal duration of the copyright term;
- the best arrangements for correcting market imperfections that inhibit voluntary licensing;
- appropriate safe harbors and fair use exceptions to copyright;
- effective enforcement remedies for infringing use and the best arrangements for correcting deficiencies in enforcement mechanisms;
- the advisability of reintroducing a formal registration requirement; and
- the advantages and disadvantages of reshaping the copyright regime with different rules for different media.
The paper itself points to the concerns raised over things like SOPA and ACTA as reason to have a more empirical based approach to copyright reform, which is a good sign (and goes against those who insist that the SOPA protests had no real impact). The report goes into a lot more details, including a number of other important research topics as well.
One other point that they raise — which is a key point we’ve brought up concerning our own Sky is Rising research — is the need for those who have this data to be much more open about sharing it for the sake of making good overall policy. Since much of the data is considered “proprietary or subject to trade secrecy and privacy protections,” the report outlines ways in which the data might be made available “on reasonable terms to qualified investigators.” This, alone, would be a huge step forward in looking at many of the key policy questions above. The lack of real data is a huge impediment to being able to create effective policy.
All in all, it’s a very good sign that this is underway, as it should really encourage a much more empirically-driven approach to the inevitable upcoming reform process. I hope that the results of future research driven by this particular effort do, in fact, play a role in any future debates on copyright reform. Moving from a faith-based look at copyright to an evidence-based one is a huge step forward, and long overdue.