About three years ago, the National Academies — the scientific advisers to the U.S. federal government — held hearings on copyright policy in the digital age. The intent of the project, of which the hearings were a part, was to gather input from a wide range of interested parties on the kinds of research that should be done to further our understanding of the effects of digital technologies on copyright.
The committee overseeing the project consisted of twelve people, including an economist specializing in digital content issues (Joel Waldfogel), a movie industry executive (Mitch Singer of Sony Pictures), a music technology expert (Paul Vidich, formerly of Warner Music Group), a federal judge with deep copyright experience (Marilyn Hall Patel of Napster fame), a library director (Michael Keller of Stanford University), a former director of Creative Commons (Molly van Houweling), and a few law professors. The committee was chaired by Bill Raduchel, a Harvard economics professor turned technology executive perhaps best known as Scott McNealy’s mentor at Sun Microsystems.
Recently the National Academies Press published the results of the project in the form of Copyright in the Digital Era: Building Evidence for Policy, which is available as a free e-book or $35 paperback. This 85-page booklet is, without exaggeration, the most important document in the field of copyright policy to be published in quite some time. It is the first substantive attempt to take the debate on copyright policy out of the realm of “copyright wars,” where polemics and emotions rule, into the realm of hard data.
The document starts by decrying the lack of data on which deliberations on copyright policy are based, especially compared to the mountains of data used to support changes to the patent system. It then goes on to describe various types of data that either exist or should be collected in order to fuel research that can finally tell us how copyright is faring in the digital era, with respect to its purpose to maximize public availability of creative works through incentives to creators.
The questions that Copyright in the Digital Era poses are fundamentally important. They include issues of monetary and non-monetary motivations to content creators; the impact of sharply reduced distribution and transaction costs for digital compared to physical content; the costs and benefits of various copyright enforcement schemes; and the effects of US-specific legal constructs such as fair use, first sale, and the DMCA safe harbors. My own testimony at the hearings emphasized the need for research into the costs and benefits of rights technologies such as DRM, and I was pleased to see this reflected in the document.
Copyright in the Digital Era concludes with lists of types of data that the project committee members believe should be collected in order to facilitate research, as well as descriptions of the types of research that should be done and the challenges of collecting the needed data.
This document should be required reading for everyone involved in copyright policy. More than that, it should be seen as a gauntlet that has been thrown down to everyone involved in the so-called copyright wars. The National Academies has set the research agenda. Now that Congress has begun the long, arduous process of revamping America’s copyright law, we’ll see who is willing and able to fund the research and publish the results so that Congress gets the data it deserves.