[A2k] Jamie Boyle in FT: And the band played on...

[Manon Ress]

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[ Picked text/plain from multipart/alternative ]
And the band played on...

By James Boyle

Published: February 25 2008 19:00 | Last updated: February 25 2008 19:00
http://www.ft.com/cms/s/0/9444c71a-e3d3-11dc-8799-0000779fd2ac.html?nclick_=
check=3D1

Readers of these columns have heard me lament  in the past about the
fact that intellectual property policy is an =93evidence-free zone=94.  It
is the trickiest of regulatory matters to get the right level of
intellectual property protection =96 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  =96 such as maps, traffic and weather information
=96 actually work best. In each case, the European Union has picked a
plausible  position =96 stronger rights will mean more production and
innovation =96 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. One recent economic study suggests that the optimal term
is 15 years.  Others have recommended even shorter terms. I would
favour 28 years, renewable for another 28 if the author desires. We
give life plus 70. Worse, since as much as 98 per cent of all
copyrighted material is currently commercially unavailable that means
we lock up most of our culture just at the moment when we could have
been digitising it and putting it on the web for the world to share. A
system that required renewal for a modest fee in order to keep the
copyright would solve these problems. We have signed treaties that
forbid us from doing anything so sensible.

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 =96 a nice example of suggesting the price should be
renegotiated upwards after the work was already done. Having already
=93paid=94 for the recording through 50 years of protection, consumers
were now to be forced to pay again for another 20 years. The Gowers
Review carefully analysed the evidence, and commissioned a really
excellent economic study that is occasionally almost readable by
ordinary mortals. They came to the same conclusion every single
disinterested academic policy review has  come to: =93Policymakers
should adopt the principle that the term and scope of protection for
IP rights should not be altered retrospectively.=94

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!
(70 was not enough.) Charlie McCreevy, the internal market
commissioner, has declared that this will harmonise protection:
composers already get the longer term.  He also argues that consumers
will not pay higher prices as a result, though the best empirical
study on works out of copyright shows exactly the reverse. That is the
point of intellectual property rights, after all.  (The Gowers Review
had carefully considered and rejected the argument that extension
would warm the firesides of many a nameless and superannuated session
musician. Because of the music industry's rapacious contracts, the
vast majority of the benefits will flow directly to the corporations
that lobbied for it.)

Mr McCreevy's harmonisation argument =96 appropriate given the subject =96
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. We can hope that a few policymakers who actually believe
in the public interest will look at the evidence and hold the line.
But now comes the harmonisation argument.

In every capital in the Organisation for Economic Co-operation and
Development, lobbyists agitate for intellectual property rights that
are wider, deeper and above all, longer. Remember, in intellectual
property we only ever harmonise upwards. (Mr McCreevy did not consider
for a moment the idea that we should reduce the protection for
compositions to match that of sound recordings.) Intellectual property
only harmonises to the highest level of protection. What that means is
that the lobbyists only need to win once, in one country. Then they
will use the seductive language of harmonisation to bring everyone
else into line internationally. And then? The process begins again. =93I
hear Mexico has an even longer copyright term. Fairness demands that
we harmonise with that!=94  The band plays on =96 but always higher,
higher =96  we  long ago stopped looking at the score.

  James Boyle is William Neal Reynolds professor of law at Duke Law
School and co-founder of the Center for the Study of the Public
Domain. His new book, The Public Domain: An Environmentalism for
Information, will be published this autumn by Yale University Press
***************************************************************************
Manon Anne Ress
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Il vaut mieux remuer une question, sans la d=E9cider, que la d=E9cider,
sans la remuer.
Pens=E9es, essais, maximes et correspondance de J. Joubert  p.249
http://visualiseur.bnf.fr/Visualiseur?Destination=3DGallica&O=3DNUMM-88671
Translation: It is better to debate a question without settling it
than to settle a question without debating it