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Does Influential Report Get Copyright’s Goals Right?

Does copyright exist to encourage creative expression, full stop, or does it also seek to motivate the commercialization of creative works?

On Thursday, the National Research Council of the national science, engineering and medical academies* issued a 102-page report calling for research to provide empirical data that better inform copyright policy decisions in the digital age. The National Research Council is influential in Washington; its report, Copyright in the Digital Era: Building Evidence for Policy, is likely to be widely cited. Terry Hart of Copyhype, however, says that the NRC report mishandles a fundamental issue — the purpose of copyright — and cites a 2012 Supreme Court decision to back him up.

The NRC report’s characterization of the tone of the copyright debate (“strident”) is indisputable, so is its statement that the debate is “between those who believe the digital revolution is progressively undermining the copyright protection essential to encourage the funding, creation, and distribution of new works and those who believe that enhancements to copyright, are inhibiting technological innovation and free expression.”

The NRC then makes the case for more data:

This debate is poorly informed by independent empirical research. Although copyright law’s efficacy and second order effects are largely empirical questions amenable to systematically collected data subject to transparent analytical methods, this type of analysis is too rarely conducted. …

Not all copyright policy questions are amenable to economic analysis. … Nevertheless, a robust research enterprise, supported by public and private funders and using a variety of methods—case studies, international and sectoral comparisons, and experiments and surveys—can inform copyright policy by addressing a range of questions. The research we call for is especially critical in light of digital age developments that may, for example, change the incentive calculus for various actors in the copyright system, impact the costs of voluntary copyright transactions, pose new enforcement challenges, and change the optimal balance between copyright protection and exceptions.

Copyhype’s Terry Hart finds “much to agree with” in this approach, but is troubled by the report’s assumption that copyright aims to “encourage creative expression and the dissemination and preservation of creative works without stifling cumulative creativity, technological innovation, or free expression.” Hart writes that the “presumption that copyright exists primarily to motivate the creation of expressive works is common, but not entirely accurate. Copyright also motivates the commercialization of expressive works. This purpose is just as important, if not more important, than the incentive to create.”

Hart quotes Justice Ginsburg’s majority opinion in last year’s Golan v. Holder in support of the proposition that copyright aims to commercialize creative works:

Nothing in the text of the Copyright Clause confines the “Progress of Science” exclusively to “incentives for creation.” Evidence from the founding, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science. Until 1976, in fact, Congress made “federal copyright contingent on publication[,] [thereby] providing incentives not primarily for creation,” but for dissemination. Our decisions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.

The rest of Hart’s analysis is also worth a read.

Though long anticipated, the Council’s release of the report is timely, coming a week after Bob Goodlatte, R-Va., chair of the House Judiciary Committee, pledged a comprehensive review of copyright law. We’ll no doubt be hearing more about the NRC’s report during that review.

*National Academy of Sciences, National Academy of Engineering, and the Institute of Medicine.