Buccafusco, for instance, is involved with opening up a new Center for Empirical Studies of Intellectual Property at Chicago-Kent, which next month will hold the first workshop for scholars, from all sorts of fields, working to apply empirical methods to IP. At Columbia, a new project called piracy.lab is working on quantitative approaches to understanding “illicit knowledge” and is looking for funds. There’s also a growing literature on “low IP” sectors—creative industries like fashion, high cuisine, tattoo artistry, stage magic, and stand-up comedy—and how they function in the absence of copyright protection.There’s been a steady stream of papers that test questions like how well copyright enforcement works as a deterrent to infringement, how creators actually use IP law, and what happens when work falls into the public domain.
Paul Heald, who teaches at the University of Illinois and is a leader in empirical research of copyright, has been studying the public domain for years, and much of his work has looked at what happens when copyrights expire. His interest in this type of research began after the Supreme Court decided, in 2002, that the Copyright Term Extension Act—the one named after Sonny Bono, that extended copyright term for an extra 20 years—was constitutional. The decision “relies on assertions made by copyright industry that…bad things happens when works fall in the public domain,” Heald says. “It just occurred to me that you could actually test some of these assertions and maybe it would be helpful when this questions come around again.”
This summer he published a paper that showed, as The Atlantic put it, that “copyright protection makes books vanish.” One argument for extending copyright is that it ensures the availability of creative works by giving copyright owners the financial incentives to keep them in circulation. By this logic, work under copyright should be widely available, while works in the public domain should be harder to find. But Heald’s research, which samples new books available on Amazon, showed the exact opposite: Although copyrighted books published the past decade or so are available, books published in the middle of the 20th century and still under copyright are much harder to find—there’s few new copies of them being made. Amazon has more books for sale from the 1910s and 20s—books that had fallen out of copyright and were being made available as public domain works.
The point here isn’t that copyright law should be done away with altogether, just that it might be helpful, as the National Academies suggested in its report, to better understand how these laws affect people in practice. “If we’re in a world without copyright, you find researchers and academics and copyright holders holding hands a lot more—everyone agrees that copyright is helpful,” says Heald. “Once you push the copyright terms from 14 years, to 28 years, to 56 years, to life of the author plus 50, to life of the author plus 70—once you get in the realms of the extreme protection, you start getting these divergence.”
Empirical research doesn’t always go against industry assertions. Independent empirical research has shown, for instance, that the pharmaceutical industry really does need patents to keep churning out new drugs. And the best empirical work out there has confirmed the recording industry’s worry that illegal downloading has hurt music sales—even if the drop is maybe not quite as dramatic as industry advocates sometimes make it out to be.
Part of what empirical research can show is how finer-tuned laws might work better. Not all creative industries work the same way—making a major motion picture requires more up-front investment than writing a poem; computer software might have a shorter shelf-life than a bestselling book. A few people doing this work floated the idea that copyright law should regulate creative industries more like the EPA regulates pollutants or the FDA regulates drugs—case-by-case, with research backing up policy decisions. “Regulatory agencies are capable of looking at products on the market and individual industries and creating regulation that fits them better than a one-size-fits-all law,” says Heald. “We can categorize copyright works into a dozen or so and get a more fine-grained treatment that would benefit everyone.”
But that’s hoping for a lot. First of all, as these researchers acknowledge, their work is in its early stages. They’re showing that not all the assumptions that IP policy has leaned on are necessarily correct, but that doesn’t mean they’ve determined what the actual rules that govern these markets are. “The things we do in our lab are pretty abstract from the real world,” says Buccafusco. “The painters we have from the Art Institute are not identically situated to the people making decisions for MGM.”