James Boyle in the FT on copyright terms

James Boyle has, as ever, a cogently argued piece in the FT on the question of the EU database directive, copyright terms and the absence of empirical evidence in intellectual property policy making generally.

"Readers of these columns have heard me lament in the past about the fact that intellectual property policy is an “evidence-free zone”. It is the trickiest of regulatory matters to get the right level of intellectual property protection – giving incentives to creators and distributors, yet not overly burdening future innovators or imposing unnecessary monopoly prices on consumers. Getting this balance right should be a matter of empiricism, not faith. We do, for example, have good evidence about what kind of policies on database rights and on state generated data – such as maps, traffic and weather information – actually work best. In each case, the European Union has picked a plausible position – stronger rights will mean more production and innovation – and seen it convincingly falsified through empirical analysis.The same is true with the length of our copyright term. Brilliant economists, including five Nobel laureates, have pointed out that our current copyright terms are far too long. We extend copyright long beyond the time necessary to provide incentives to create and distribute...

At the end of last year, I did note a ray of hope. In two cases, both in Europe, policymakers had actually looked at evidence in order to decide what to do! The Commission studied the EU database market to see if the database right was doing any good. It was not. The UK government commissioned the Gowers Review of intellectual property policy to see whether we should extend the term of sound recordings retrospectively...

They came to the same conclusion every single disinterested academic policy review has come to: “Policymakers should adopt the principle that the term and scope of protection for IP rights should not be altered retrospectively.”

But it was not to be. Faced with a tidal wave of pressure by publishers of databases, who liked their monopolies very much, thank you, the Commission shamefully gave in and left the directive in place. While the British government showed more spine on sound recordings, the European Commission has now announced that it thinks the copyright over sound recordings should be extended to 95 years!

Mr McCreevy's harmonisation argument – appropriate given the subject – is worth thinking through. Political scientists tell us that there are types of issues where we can almost guarantee that the state will get things wrong; cases where the benefits of some proposed policy go to a small and well-organised lobby of repeat players while the much larger costs fall on a wider and less well informed public. That is why it is so important to have policies that are justified with facts rather than faith."