Last Monday, in his regular column for the Financial Times, James Boyle discussed the ubiquitous argument that copyright laws should be harmonized around the world. Often phrased as a argument about competitive advantage, the call for harmonization, Boyle points out, only goes in one direction — upwards. No one ever asks that the laws be harmonized downward in favor of lesser protection, even when there is substantial evidence that copyright protection is now far more restrictive and protective than is necessary to accomplish the purpose for which it is intended, to provide incentives for creation. As Boyle indicates, copyright has become an “evidence-free zone” where the mounting number of studies that suggest that we are over-protecting intellectual property in a way that actually discourages and depresses creativity and innovation are consistently ignored. One economic study that Boyle cites, for example (and that I have mentioned before in this space), finds that the optimal term of copyright protection is only 15 years, not the average term we now have of approximately one-hundred years.
As if on cue, another industry lobbying group, dressed up as a think-tank, is touting their latest argument for additional protection; the Progress and Freedom Foundation wants to extend the performance right in US Copyright law to include recording artists. The principle argument for this grab at additional royalties, of course, is that other countries give recording artists such a right, and the laws ought to be harmonized. No thought is given, of course, to the possibility of seeking harmonization by lobbying other countries to drop this particular right, even though its absence in the United States is not shown to have done any harm to our recording industry. The argument that radio play is an economic benefit to the recording industry is dismissed as irrelevant, proving Boyle’s point about the fear of actual evidence.
Until legislators start to demand hard economic evidence for the changes they are asked to make to intellectual property laws, we will continue to have this game where lobbyists convince one nation to adopt a stricter IP regime than the rest of the world, then try to force that regime down everyone else’s throats in the name of harmony.