on the operation and impact of the patent system. An important early effort was the establishment at the National Bureau of Economic Research (NBER) of the first publicly available patent dataset that incorporated both accessible patent citation data and links to Compustat data on individual firms (Jaffe and Trajtenberg, 2002). Extensive surveys of corporate R&D managers by researchers first at Yale University (Levin et al., 1987) and later at Carnegie-Mellon University (Cohen et al., 2000) provided the first systematic data on how patents are used relative to other means of creating competitive advantage in different industries. Public agencies such as the National Science Foundation and, in recent years, the U.S. Patent and Trademark Office itself, have taken further steps to expand patent-related data collection and analysis. A robust empirical research agenda in the copyright area will require data associated with the activities of very different stakeholders—originating artists, performers, companies that publish and disseminate copyrighted works—as well as much more detailed user data that capture patterns of digitized material consumption and distribution across population groups.
The availability of systematic data and the emergence of a community of investigators able to identify the strength and weaknesses of particular data sources for addressing particular issues were keys to an empirically oriented understanding of the patent system that has clearly influenced policy making in the area. The committee believes that creating a similar data infrastructure platform around copyright and enabling a community of investigators to study and engage directly in policy debates in the area of copyright would be immensely valuable.
Empirical copyright research has been undertaken in the past although not on a sustained basis. Issues similar to today’s debates about anti-piracy measures arose at the dawning of the digital age over two decades ago. With the advent of digital audio tape (DAT) technology, the record industry and the consumer electronics industry diverged on the need for government intervention. Both sides produced consumer surveys and studies supporting their points of view. The non-partisan Office of Technology Assessment (OTA), created to provide Congress with authoritative analysis of complex technical issues, sponsored theoretical, empirical, and survey research that addressed consumer patterns as well as the concerns about infringing use of home recording technology. Although the legislation growing out of this work—the Audio Home Recording Act of 1992, P.L. 102-563, 106 Stat. 4237—was soon eclipsed by more effective digital copying and playback technologies (e.g., computer ripping of audio files from CDs and MP3 players), the OTA studies, in particular its consumer survey, provided an objective basis for anticipating consumer behavior and evaluating policy options (U.S. Congress Office of Technology Assessment, 1989).