Wednesday, January 04, 2006

Two cheers for the EU on database directive review

James Boyle has two cheers for the EU on their empirical review of the EU datbase directive.

"So why only two cheers? Well, while the report is a dramatic improvement, traces of the Commission’s older predilection for faith-based policy and voodoo economics still remain.

The Commission coupled its empirical study of whether the Directive had actually stimulated the production of new databases with another intriguing kind of empiricism. It sent out a questionnaire to the European database industry asking if they liked their intellectual property right – a procedure with all the rigour of setting farm policy by asking French farmers how they feel about agricultural subsidies.

Yet the report sometimes juxtaposes the two studies as if they were of equivalent worth. Perhaps this method of decision-making could be expanded to other areas. We could set communications policy by conducting psychoanalytical interviews with state telephone companies – let current incumbents’ opinions determine what is good for the market as a whole. “What is your emotional relationship with your monopoly?” “I really like it!” “Do you think it hurts competition?” “Not at all!”"

He's also scathing about the excuses the report offers for not channging or killing off the directive: ie the database industry want it, scrapping it will lead to a debate about how much protection databases really need and change is costly:

"Imagine applying these arguments to a drug trial. The patients in the control group have done better than those given the drug, and there is evidence that the drug might be harmful. But the drug companies like their profits, and want to keep the drug on the market. Though “somewhat at odds” with the evidence, this is a “political reality.” Getting rid of the drug would reopen the debate on the search for a cure. Change is costly – true. But what is the purpose of a review, if the status quo is always to be preferred?

The European Commission has taken one important and laudable step towards rational policy-making on database protection. Now it needs to finish its journey."

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