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UK Moves Towards Evidence-Based Copyright Policymaking, Will the U.S. Do the Same?

August 5, 2011

In May, the results of an independent study on the state of UK intellectual property (IP) laws commissioned by Prime Minister David Cameron and conducted by Professor Ian Hargreaves were released.  The Hargreaves “Digital Opportunity” report outlined a number of laudable recommendations for improving the UK’s IP framework.  From a policy standpoint, the most striking outcome of the report was the focus on the lack of evidence-based policy decisions. 

Thus, much of the attention it received was due to its recognition that money and lobbying power were often the strongest driving factors for UK copyright policies.  Many articles honed in on the report’s use of the term “lobbynomics” to describe “evidence” supporting the arguments of powerful rights-holders to get expanded protection.

The report’s first recommendation is to ensure that UK policy on IP rights is based on objective evidence.  The report also called for an evenhanded approach to policy-making that accounts for both the benefits to the rights-holders and the impact on larger societal interests.  There are two key problems that the report identified: 1) rights-holder lobbyists are always found to be more persuasive than economic impact assessments; and 2) policy-makers tend to operate under the principle that stronger, more expansive rights are obviously better for everyone.

Well, earlier this week, the UK government issued a formal response to the report’s findings.  The government outlined its intention to adopt the full set of recommendations.  Shockingly, government officials admitted to using a flawed approach where decisions were based on weak evidence.  UK officials plan to limit the influence of evidence that is not transparent and open in its methodology while recognizing the difficulty smaller interest groups face in getting data to counter biased research.  This signals a transition towards a new mindset recognizing that copyright is about balancing the interests the rights-holder with those of the public. 

For too long, governments have looked at IP through a lens where expanded rights = winning! The UK government has decided to try to correct that but this approach is still commonplace here in the U.S.  Members of Congress continue to acquiesce to the demands of deep pocketed interests that clamor for broader scope of protection.  This kind of thinking is contrary to the framework envisioned by the drafters of the Constitution. 

American lawmakers have taken the Constitution’s call for the development of a copyright regime to promote continued innovation to the extreme.  Government officials have defaulted to a governance model that places the interests of all IP rights-holders as primary despite any evidence to the contrary.  They have operated under the assumption that a broader scope of rights protection will undoubtedly lead to more economic growth by incentivizing the creation of new inventions.  Therefore, the evidence or lack thereof that is presented by the powerful interest groups is often taken as the gospel without much independent evaluation. 

The U.S. government has continued to try to move the boundaries of copyright protection at every angle.  This can be seen the current debate about the PROTECT IP Act, where congressmen continue to heed the anecdotal statements of movie and recording industry representatives over the sound economic evidence of other members of the public that raise legitimate concerns about the possible negative impact of passing legislation giving rights-holders even broader rights.  In 1994, the Uruguay Round Agreement Act was approved thereby removing works from the public domain and putting them back under copyright protection. A few years later, the Sonny Bono Act was passed, which gave copyrighted works an additional 20 years of protection that applied retroactively to existing works. 

Public Knowledge and other public interest groups have questioned the methodology and lack of transparent data in the evidence that is used by rights-holder groups.  A 2010 Government Accountability Office (GAO) study agreed with the findings of public interest groups that studies highlighting losses due to IP infringement use questionable methodology.  Similarly, at the U.S. Copyright Office hearing on extending federal copyright laws to pre-1972 sound recordings, representatives for powerful rights-holder groups had no data to support their contention that this policy would cause harm.  However, they continued to dismiss the empirical evidence from a 2005 study commissioned by the Library of Congress on the number of pre-1972 recordings that were being made available to the public by their rights-holders. 

This is a recurring theme in the US policy framework for dealing with IP rights. But unlike the UK, American politicians don’t see it as a problem. Congress passes new copyright laws, and the executive branch negotiates new IP-focused treaties and trade agreements without any evidence to back them up.

Unfortunately, this “evidence free” IP policymaking has the Supreme Court's blessing. As a general matter, of course, the Court should not second-guess the elected branch's policy decisions, however poor they may be. Courts usually only look to see if a given law has some conceivable justification (the “rational basis” test), and if it does, is it constitutional. But copyright law requires a balance between protecting rights and free expression.  So, when Constitutional rights are in question the Court usually applies a higher level of scrutiny, where it analyzes whether a law is trying to do something important and whether it does it well. But the Court has not applied this higher standard with copyright.  In the Eldred case, for instance, it deferred to Congress and did not consider the arguments in the brief filed by 17 economists (including 5 Nobel laureates!) that challenged the economic rationale offered by the government for retroactively extending copyright terms.  The Court did leave an escape valve, though:  it noted that copyright laws only receive rational basis review when they're within the “traditional contours” of copyright.  In PK's view, taking works out of the public domain and putting them back in copyright goes pretty far afield of traditional copyright, which is why we hope that the Court agrees with us in Golan.

As the UK government starts to revamp its thinking about the most effective way for dealing with IP right, the U.S. government may want to do the same.  The Constitution calls for a limited monopoly and as the Hargreaves report points out, a balanced approach of rights-holder and social interests will be much more valuable to economic growth.  To promote a stronger economy, the government needs to work in a framework that facilitates the free flow of information alongside rights protection mechanisms.  More rights are not always the right answer.