Open Access News

The European Commission recently did something amazing and admirable. It conducted an empirical evaluation of whether an EU initiative was actually doing any good. The initiative in question was the Database Directive [of 1996], which required the creation of a broad new Community-wide “sui generis” intellectual property right over compilations of facts. The report honestly describes this as “a Community creation with no precedent in any international convention.” Using a methodology similar to the one I described in an earlier column on the subject, the Commission found that “The economic impact of the “sui generis” right on database production is unproven. Introduced to stimulate the production of databases in Europe, the new instrument has had no proven impact on the production of databases.” In fact, their study showed that the production of databases had fallen to pre-Directive levels and that the US database industry, which has no such intellectual property right, was growing faster than the EU’s. The gap appears to be widening....Commission insiders hint that the study may be part of a larger – and welcome – transformation in which a more professional and empirically-based look is being taken at the competitive effects of intellectual property protection. Could we be moving away from faith-based policy in which the assumption is that the more new rights we create, the better off we will be?...[W]hy only two cheers? Well, while the report is a dramatic improvement, traces of the Commission’s older predilection for faith-based policy and voodoo economics still remain. The Commission coupled its empirical study of whether the Directive had actually stimulated the production of new databases with another intriguing kind of empiricism. It sent out a questionnaire to the European database industry asking if they liked their intellectual property right – a procedure with all the rigour of setting farm policy by asking French farmers how they feel about agricultural subsidies....Setting intellectual property rights too high can actually stunt innovation....In its conclusion, the report offers a number of possibilities, including repealing the Directive, amending it to limit or remove the sui generis right while leaving the rest of the Directive in place, and keeping the system as it is. The first few options are easy to understand. Who would want to keep a system when it is not increasing database production, or European market-share and indeed might be actively harmful? But why would we leave things as they are? The Report offers several reasons. First, database companies want to keep the Directive. (The report delicately notes that their “endorsement.. is somewhat at odds with the continued success of US publishing and database production that thrives without... [such] protection” but nevertheless appears to be “a political reality”.) Second, repealing the Directive would reopen the debate on what level of protection is needed. Third, change may be costly. Imagine applying these arguments to a drug trial. The patients in the control group have done better than those given the drug, and there is evidence that the drug might be harmful. But the drug companies like their profits, and want to keep the drug on the market. Though “somewhat at odds” with the evidence, this is a “political reality.” Getting rid of the drug would reopen the debate on the search for a cure. Change is costly – true. But what is the purpose of a review, if the status quo is always to be preferred?

Comment. What's the OA connection? First, faith-based IP laws harm research and access to research. Intelligent reforms would help both even if strictly speaking OA can succeed without IP reform. Second, the EU database directive is a large step toward the copyright of facts. There is already pressure for the US to harmonize with the EU on this point. But it would be much better, for all the parties and for all the reasons that Boyle discusses, if the EU gave up the special protection of databases and harmonized with the US instead. Let's keep facts free and possibility of copyrighting them a legal taboo.