Although copyright law’s efficacy and second order effects are largely empirical questions amenable to systematically collected data subject to transparent analytical methods, this type of analysis is too rarely conducted. Instead of asking, “What is the research-based evidence?” partisans tend to rely on claims of and evidence marshaled by stakeholders. This situation contrasts with the emerging pattern in patent policy discussions, where empirical research has begun to play an important role in the genesis and resolution of important policy changes and whose support is becoming institutionalized.

Not all copyright policy questions are amenable to economic analysis. In some cases, it may be possible to determine only the direction of the effect of policy changes, not the magnitude. Nevertheless, a robust research enterprise, supported by public and private funders and using a variety of methods—case studies, international and sectoral comparisons, and experiments and surveys—can inform copyright policy by addressing a range of questions. The research we call for is especially critical in light of digital age developments that may, for example, change the incentive calculus for various actors in the copyright system, impact the costs of voluntary copyright transactions, pose new enforcement challenges, and change the optimal balance between copyright protection and exceptions.

With respect to changing incentives for creators, distributors, and users, research could help determine

  • how the expenses involved in creative expression and distribution differ across sectors and the role of copyright in generating revenues to offset those expenses;
  • under what circumstances sources of monetary and/or non-monetary motivation outside of that provided by copyright are effective in motivating creative activity;
  • the motivations of various types of users and potential users of creative works, including both infringers and lawful users; the effects of enhanced enforcement remedies on promoting creativity, technological innovation, and freedom of expression; and
  • how the costs of distributing creative content are affected by social media and other new technologies.

With respect to the enablers of and impediments to voluntary licensing transactions in copyrighted works, research would help determine

  • the significance of transaction costs as barriers to utilization of copyrighted works;
  • the extent of problems involving orphan works (whose owners cannot be identified), user-generated content, and collaborative and iterative works;


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