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September 14, 2005

Expanding the public domain

A transcript of James Boyle's remarks on the public domain, copyright and Creative Commons, given at the Association of Research Libraries 146th Membership Meeting, May 26 2005. James calls for more evidence-based thinking on intellectual property issues, something that is currently sorely lacking.

Here’s another remarkable thing about intellectual property policy over the last 10 or 15 years: it is almost evidence-free. People criticize the FDA about Vioxx. But if we were doing FDA drug approvals the way we approved intellectual property expansions, this is how the process would go. The drug company would say, “This is my friend. He took the pill and he feels better.” Or sometimes even, “This is my friend, he needs to take a pill and he thinks it will make him better.” And then they would offer a model about as complicated as a picture of the person with a mouth and the pill in their stomach and say, “See?” That’s about as data-intensive as things have been.

What if we had a test case where two regions adopted different intellectual-property policies, and we actually had evidence showing how these policies worked? Well, we actually do have such a case—in the area of database protection. In Europe, there is strong database protection under both copyrights and sui generis database rights. Many European governments also claim some kind of copyright over databases. And there is the idea that institutions, such as the Ordnance Survey or the weather companies, should recover their costs by charging users. The US tradition is totally different. In the US, there are no rights over data or unoriginal compilations of data. Any text produced by the government is free from copyright and passes immediately into the public domain. As for government-funded data, it is produced and distributed to the public with the idea, remarkably, that taxpayers have already paid for this, and shouldn’t have to pay for it again.

Now, we actually have some good evidence about the effects of these different approaches. The United States database industry is considerably larger and more thriving, and has higher rates of return, than the European database industry. In fact, at the moment when Europe introduced sui generis database rights, there was a short one-time spike as database producers raced into the market, but then growth rates returned to previous levels, and many companies left the market. And when did Reed Elsevier and Thomson enter the legal database market in the United States? It was after a case called Feist, which said that facts, and unoriginal compilations of facts, were uncopyrightable. That is to say, European companies chose to come into a classically public information field in the United States after they had found out, for sure, that they could get no copyright in unoriginal databases. Yet, even without database rights, they’re getting high rates of return. So, we have evidence showing that less protection has been better for innovation than more protection. But you could spend days listening to arguments about database rights, and you’d never hear these facts mentioned.

(Via Open Access News.)

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