The Bizarro, Fact-free World Of Copyright Policymaking
from the would-be-nice-to-have-some-fact-based-policy dept
Even with this constant attention, it's sometimes easy to lose sight of exactly how world-champion strange copyright policy is. Only when it's placed alongside other government policies does it become clear exactly how it has evolved into a bizarro-world version of rational policymaking.
That something does what it's supposed to is usually the baseline for evaluating public policy. It's certainly what I expected to find as I researched my (shameless self-promotion alert) just-published book, Copyfight: The global politics of digital copyright reform. I'm an economist and political scientist by training, and also spent six years as an economist with the Parliamentary Information and Research Service, the Canadian equivalent of the Congressional Research Service. Coming cold to the wonderful, wooly world of copyright, I expected that such a long-lived institution would be grounded at least partly in empirical evidence that it, you know, actually promotes the creation and dissemination of music, books and so on.
Silly me. Here's how Ruth Towse and Rudi Holzhauer conclude their introduction to their 2002 edited volume, The Economics of Intellectual Property:
"For all the sophisticated analysis by economics, economic historians, law-and-economists and lawyers, we still cannot say with any conviction that in general IP law stimulates creativity or promotes innovation, though it may contribute to the process of communication between producers and consumers."That's not exactly a ringing endorsement. (Towse and two co-authors reach a similar conclusion in a 2008 article reviewing the economics literature on copyright.)
In a 2009 study, "Does Copyright Law Promote Creativity? An Empirical Analysis of Copyright's Bounty," Raymond Shih Ray Ku, Jiayang Sun and Yiyang Fan remark that "even though copyright has existed and continuously expanded for hundreds of years, there has been little research done to test the theoretical basis for copyright's expansion. In fact, so little has been done that one author [in 2006] specifically pled for more empirical research."
Being good researchers, they did just that, looking at whether the number of works created in the United States from 1870 to 2006 increased as the government strengthened copyright law. They found that stronger copyright indeed led to more works being created.
Kidding! They actually found "that when lawmakers consider whether to expand copyright law, there is little empirical or theoretical support for the position that increasing copyright protection will increase the number of new works created."
Despite a lack of evidence that would spur calls for a fundamental rethink in almost any other area of public policy, copyright continues to spread and strengthen, from books to computer programs to online works, from a renewable 14 year term to life of the author plus 100 years in Mexico.
And of course there's Ian Hargreaves' 2011 report, which called for UK copyright policy to be "evidence based." Imagine that.
While none of this will surprise readers of this website, to any non-copyright policy wonk this state of affairs is insane.
It's not that all (or even most) public policy is purely evidence based (see: Drugs, War on). Power, self-interest and morality shape all policy debates. But copyright is unique in that it is driven almost purely by these factors. Even morality-based arguments for the War on Drugs have to contend with the actual, measurable effects of government anti-drug policy.
Copyright reforms should be evaluated based on how they would affect the production and dissemination of creative works. How much is being produced? How many people are able to access these works?
That doesn't happen. Instead, policy is driven by morality-based arguments about how copying is theft, and by its effects on specific industries and business models (often citing industry-supplied data). Not good.
We'll never eliminate power and self-interest from copyright politics. However, it could be made a bit more sane by adopting an evidence-based focus on how well it fulfills its dual objectives in the interests of society as a whole. In doing so, analysts could help ground a debate that, in the absence of evidence, is polarized by self-interested arguments and irreconcilable questions of morality and "rights." This should've happened 300 years ago, but better late than never.
Blayne Haggart (@bhaggart) is an assistant professor of political science at Brock University in St. Catharines, Ontario. His first book, Copyfight: The global politics of digital copyright reform was just published by University of Toronto Press.