The first thing to realize is that many decisions are driven by honest delusion, not corporate corruption. The delusion is maximalism: the more intellectual property rights we create, the more innovation. This is clearly wrong; rights raise the cost of innovation inputs (lines of code, gene sequences, data.) Do their monopolistic and anti-competitive effects outweigh their incentive effects? That’s the central question, but many of our decision makers seem never to have thought of it.
The point was made by an exchange inside the Committee that shaped Europe’s ill-starred Database Directive. It was observed that the US, with no significant property rights over unoriginal compilations of data, had a much larger database industry than Europe which already had significant “sweat of the brow” protection in some countries. Europe has strong rights, the US weak. The US is winning.
Did this lead the committee to wonder for a moment whether Europe should weaken its rights? No. Their response was that this showed we had to make the European rights much stronger. The closed-mindedness is remarkable. “That man eats only a little salad and looks slim. Clearly to look as good as him, we have to eat twice as much, and doughnuts too!”
Part of the delusion depends on the idea that inventors and artists create from nothing. Who needs a public domain of accessible material if one can create out of thin air? But in most cases this simply isn’t true; artists, scientists and technologists build on the past. How would the blues, jazz, Elizabethan theatre, or Silicon valley have developed if they had been forced to play under today’s rules? Don’t believe me? Ask a documentary filmmaker about clearances, or a free-software developer about software patents.
Which brings me back to the BBC Creative Archive. Some of the reaction I got to the previous suggestion was that the cost of rights clearance would make it impractical, and why should the UK subside the rest of the world?
Sound recordings in the UK made before 1955 are now out of copyright. The BBC was founded in 1922. Start with those 33 years of material in the global pubic archive and see how it goes. If we're right about building on the past encouraging creativity, once the rights-holders see what this does for awareness and CD & DVD sales from those eras, they'll be lining up for a new contract.
I'd like to let Douglas Adams get a word or two in here: