Earlier today, the National Research Council of the National Academies has released a long-awaited report,[thereby].

The report aims to identify gaps in [,] that the authors suggest can assist in shaping copyright policy. In particular, the Council recommends that further study can focus on the “incentive calculus for various actors”, the “costs of voluntary copyright transactions”, “enforcement challenges”, and the “balance between copyright protection and exceptions.”

The report also examines what it calls the “data infrastructure for an empirical approach to copyright policy research.” It identifies existing sources of data that could be helpful to researchers. It also inquires about reducing bottlenecks to certain private datasets in existence. That is, data that could assist researchers may already be out there, just not easily accessible — for example, it might be in the hands of private firms.

The Trees

Copyright in the Digital Era is substantial and could provide ample discussion among academics, researchers, and policy makers. Indeed, there is much to agree with in the 102 page report.

For example, the Council calls for more data “to assess the magnitude and policy implications of the orphan works problem.” The U.S. Copyright Office has been [[#protected_1#]] over the past several years to determine if legislation is necessary to facilitate productive uses of works where the copyright owner cannot be identified or located. If comments it has received from potential users of orphan works are any indication, further research could reveal that the magnitude of the problem is far more limited than it has been made out to be. Any legislative fix for orphan works should equally be limited and circumscribed.

The Council also recommends further study of copyright litigation in civil courts. Research in this area could provide a wealth of information concerning costs of litigation, outcomes of lawsuits, and judgments awarded. This data would seem to be very helpful for another Copyright Office project: its [T].

The Forest

Unfortunately, the report suffers from a number of fundamental errors.

First, it presumes that the aim of copyright is to “encourage creative expression and the dissemination and preservation of creative works without stifling cumulative creativity, technological innovation, or free expression.” It goes on to say that research could help determine, for example, “under what circumstances sources of monetary and/or non-monetary motivation outside of that provided by copyright are effective in motivating creative activity.”

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. The Supreme Court made this point less than a year ago in Golan v. Holder.

“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.”

This economic incentive doesn’t come in the form of financial rewards from the government but in the form of exclusive, private property rights secured by the government — rights that allow for private ordering and a functioning market that promotes progress in the same fashion as any free market system.1
If you focus solely on the motivation to create, as this report tends to do, than you will end up with a skewed copyright policy that leads to suboptimal results.

I saved the most troubling aspect of Copyright in the Digital Era for last. The report only briefly mentions that “not all copyright policy questions are amenable to economic analysis.” This is an understatement if there ever was one.

Simply put: copyright promotes important noneconomic values. Courts and others regularly recognize that copyright, at times, protects free speech interests.2 While U.S. law doesn’t recognize “moral rights” of authors in the same way as other countries, the inherent dignity of creators that these rights protect are implicit in many copyright provisions.3

On another note, the subject matter of copyright and its purpose of promoting knowledge and culture mean that a lot of its aspects are simply unquantifiable. What is the value of a cat video? What is the value of an episode of Game of Thrones? And if a certain policy favors the creation and dissemination of one at the expense of the other, how do you measure the effect of that trade-off? It’s vital that policy makers remain cognizant that not everything in the copyright world can be reduced to numbers and data.

So long as the noneconomic values that copyright promotes are recognized, and Copyright in the Digital Era is placed in the proper context, it can play a role in aiding copyright policy discussions. But there likely exists a strong temptation to treat the research questions in the report as covering the entire universe of copyright policy questions.

Footnotes

1. Adam Mossoff explores the commercialization policy of copyright in more detail in his recent paper, [#protected_2#]. [[#protected_1#]]
2. “[T]he Framers intended copyright itself to be the engine of free expression.” [,], 537 US 186, 219 (2003), quoting Harper & Row v. Nation Enterprises, 471 US at 539, 558 (1985). [#protected_2#]
3. See [#protected_2#]. [#protected_1#]