Readers of these columns have heard me lament 
in the past about the fact that intellectual property policy is an
“evidence-free zone”.  It is the trickiest of regulatory matters to get
the right level of intellectual property protection – 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 
– such as maps, traffic and weather information – actually work
best. In each case, the European Union has picked a plausible  position
– stronger rights will mean more production and innovation – 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 – a nice example of suggesting the price should be renegotiated upwards after the work was already done.
Having already  “paid” 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: “Policymakers should adopt the principle that the term
and scope of protection for IP rights should not be altered
retrospectively.”

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 –
appropriate given the subject – 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. “I hear Mexico has an even longer
copyright term. Fairness demands that we harmonise with that!”  The
band plays on – but always higher, higher –  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