I have written here a couple of times before about the origins of copyright law, and about the questionable nature of some of the “evidence” of widespread infringement presented by the content producing industry. Apart from being obviously self-serving, the claims for economic loss due to infringement make the assumption that every unauthorized copy would become a sale if only enforcement were better, a claim that is not justified by any evidence that I’ve seen. The industry’s claims also ignore the difficult to estimate, but almost certainly non-zero, benefits of fair use.
All of this has been an ongoing controversy here in the US, but it affects other countries, too. Now, as reported in a post on the “Law & Disorder” blog at Ars Technica, an independent review of intellectual property law in the United Kingdom, commissioned by Prime Minister David Cameron, and conducted by Professor Ian Hargreaves, has been published. The report, Digital Opportunity: A Review of Intellectual Property and Growth [PDF] although it recognizes the economic importance of “intangibles” to societies like the UK, raises many of the same concerns that have expressed here in the US; in particular, as Prof. Hargreaves writes in the Foreword, the law has not kept up with the changes in society and technology:
Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth?
The short answer is: yes. We have found that the UK’s intellectual property framework, especially with regard to copyright, is falling behind what is needed.
The review also finds that, as has been suggested in the US, much of the data presented to support the case for enhanced copyright protection is somewhat suspect.
Much of the data needed to develop empirical evidence on copyright and designs is privately held. It enters the public domain chiefly in the form of ‘evidence’ supporting the arguments of lobbyists (‘lobbynomics’) rather than as independently verified research conclusions.
The review makes a strong case for moving to an evidence-driven process for setting policy, with the evidence being developed and vetted by someone who does not have an axe to grind. It also strongly recommends that fair use exceptions to copyright take account of the benefits of such use, and that restrictions on copying for private use (e.g., for time- or format-shifting) be minimal.
The review also takes a strong position against the increasingly common practice of retroactive copyright extension, pointing out that the incentive for creative work that is supposedly the prime justification for copyright does not even make sense in that context.
Economic evidence is clear that the likely deadweight loss to the economy exceeds any additional incentivising effect which might result from the extension of copyright term beyond its present levels. … This is doubly clear for retrospective extension to copyright term, given the impossibility of incentivising the creation of already existing works, or work from artists already dead
The report is worth reading if you have an interest in this area; I intend to do my best to persuade my Congress Critters to read it.