Adding some evidence to copyright's "evidence-free zone"

In the Columbia Journalism Review, Sarah Laskow looks at the empirical research on whether, and how, copyright works. From Christopher Buccafusco et al's experimental work on the motivations for creative work to Paul Heald's work on copyright term-extension, which showed that the negative impact of extending copyright on most works -- as their copyright terms extended, they simply disappeared. Bill Patry's amazing How to Fix Copyright and James Boyle's wonderful The Public Domain both make a case for copyright policy as an "evidence-free zone," and this is a timely reminder of just how true that is.

Part of what empirical research can show is how finer-tuned laws might work better. Not all creative industries work the same way—making a major motion picture requires more up-front investment than writing a poem; computer software might have a shorter shelf-life than a bestselling book. A few people doing this work floated the idea that copyright law should regulate creative industries more like the EPA regulates pollutants or the FDA regulates drugs—case-by-case, with research backing up policy decisions. “Regulatory agencies are capable of looking at products on the market and individual industries and creating regulation that fits them better than a one-size-fits-all law,” says Heald. “We can categorize copyright works into a dozen or so and get a more fine-grained treatment that would benefit everyone.”

But that’s hoping for a lot. First of all, as these researchers acknowledge, their work is in its early stages. They’re showing that not all the assumptions that IP policy has leaned on are necessarily correct, but that doesn’t mean they’ve determined what the actual rules that govern these markets are. “The things we do in our lab are pretty abstract from the real world,” says Buccafusco. “The painters we have from the Art Institute are not identically situated to the people making decisions for MGM.”

Mostly, they’re hoping that, in the next round of copyright lawmaking, they’ll have some evidence to present lawmakers to help them better understand how the laws they’re making work—that the debate will be informed, just a little bit, by empirical, independent research.

Does copyright law work? [Sarah Laskow/Columbia Journalism Review]

(via Techdirt)