A new, independent report commissioned by the British Prime Minister has just come out. Its observations are astute and damning with respect to the claims used to rush last year’s Digital Economy Act into law after only two hours of Parliamentary debate. The report also criticized the exceedingly poor quality of the evidence upon which that questionable law is based.
The report, Digital Opportunity: A Review of Intellectual Property and Growth, was penned by respected journalism Professor Ian Hargreaves and is based on analysis and opinion from a team of highly regarded scholars, including the amazingly talented storyteller and legal scholar, James Boyle, whose 1996 Shamans, Software and Spleens is one of the most splendid books on knowledge and copyright in the digital age that I’ve ever read. The people behind the report are impressive; the range of sources consulted even more so.
The tone is set clearly in the Foreword. On page 1, it asks whether the U.K approach to copyright and intellectual property stifles innovation. Yes, Hargreaves states without hesitating.
Are piracy and copyright infringement real problems? Absolutely, he states. “No one doubts that a great deal of copyright piracy is taking place” (p. 6).
However, the report tempers that with two key provisos – the equivalent of a double-knuckled blow against the central props of the “copyright industry.”
First, “sales and profitability levels in most creative business sectors appear to be holding up reasonably well. We conclude that many creative businesses are experiencing turbulence from digital copyright infringement, but that at the level of the whole economy, measurable impacts are not as stark as is sometimes suggested (p. 6). This is pretty much the conclusion I reached in my column for The Globe and Mail this past Tuesday.
Second, “reliable data about scale and trends is surprisingly scarce” (p. 6). Since I’ve dealt with issues surrounding the economic state of the music and other media industries in other posts, including yesterday’s column, I will focus on the quality of the evidence issue here.
Hargreave and colleagues are crystal clear that bad evidence is central to the whole issue of copyright law and adequately determining the vitality of the copyright industries as a whole, from music, to books, television, radio and animation – the whole gamut, including patents. A few examples help to illustrate the point:
- “A detailed survey of UK and international data finds that very little of it is supported by transparent research criteria” (p. 6); “There is . . . next to no evidence on copyright policy (p. 17); “[R]eliable data is surprisingly thin on the ground” (p. 69).
- “[W]e have failed to find a single UK survey that is demonstrably statistically robust” (p. 69).
- The estimated scale of music piracy in the U.K. in the many studies they reviewed ranged wildly from 13 to 65 per cent (pp. 70-72). Studies globally are much the same, although a single study by Industry Canada and another by the Government Accountability Office (2010) in the U.S. (equivalent to the Auditor General in Canada) are singled out as exceptions to this rule, i.e. they’re good and follow valid analytical methods.
Based on the extremely poor quality of the evidence, the report states, “we should be wary of expecting tougher enforcement alone to solve the problem of copyright infringement” (p. 6).
Worse, not only have lobbyists been remarkably successful at driving an agenda on the basis of poor evidence, they have made “stronger Government action against online infringement ... their top priority” without the evidence needed to support such priorities (p. 67).
And the root of the problem? The authors hold no punches there, either. “Lobbynomics,” they call it, a set of unfortunate circumstances whereby “much of the data needed to develop empirical evidence on copyright and designs is privately held. It enters the public domain chiefly in the form of “evidence” supporting the arguments of lobbyists (“lobbynomics”) rather than as independently verified research conclusions” (p. 18).
