I/A 2.0 Session Summary - The Empirical Battle Over IP: Data, Damned Data, and Statistics

Tal Niv (Creative Commons), Joe Karaganis (American Assembly), Glynn Lunney (Tulane University Law School), Colleen Chien (Santa Clara Law)

This panel focused on ways that empirical data is currently used, can be used, and has potential to be used in the future to promote a responsible IP agenda. Kicking off the session, Joe Karaganis presented the American Assembly’s Media Piracy in Emerging Economies Report and discussed the current research deficit. Focusing on traditional incentive for research, Karaganis highlighted how current research structures require that researchers know how their work fits into the social change agenda. While the reward structure is based on more publication and advancing strong niche disciplinary focuses—in order for researchers to actually connect their work to the public—simple writing, simple work and collaboration are key. Karaganis’s work focused on 44 grants presented over 2 years promoting collaborative research. Many of these project blew up (and not in a good way), but this was a meaningful learning lesson in the mission to promote collaborative research. Karaganis also highlighted the boom and bust of IP funding. In the early 2000s, numerous organizations were focused on IP research. But people have left, infrastructure has crumbled, and board pushbacks have increased, resulting in significantly decreased funding. Who will step up? Tech companies? Maybe. Our attention should be on how to best focus the research landscape going forward.

Glynn Lunney, Jr., highlighted the broken state of copyright. While telling the tale of the traditional “incentive story”: that copyright increases revenue to copyright owners; that increased revenues means more creative works; and that more works increase the social welfare––Mr. Lunney humorously debunked this story by indicating that the way the current system plays out, revenues are down yet the amount of creation has thrived. New artists continue to emerge, and while revenue to these artists falter (from $3.2 billion to just under $2 million today)––song production has risen. Mr. Lunney attributed this to declining costs in producing creative musical works; commercial versus consumer copying; background bending labor supply curve (the idea that at some point, an artist gets paid so much, they work a lot less); non-financial motivations; and a superstar-based reward system.

Colleen Chien from Santa Clara Law highlighted the importance of being able to effectively communicate and provide visualizations for the public in order to help them make sense of empirical data related to IP. Chien raised questions about the cost to continue this research, its social benefit, and the impact of patent trolls on small companies (i.e. losing funding, delaying innovation). She promoted humanizing these issues for everyone in order to more effectively motivate action. Particularly with regard to patents, Chien said we need to connect patents to something important, such as jobs or innovation. To do so, she said, we need to personalize research––to tell stories that everyone can relate to and understand.

Tal Niv presented on “Licenses for Free Culture,” acknowledging how everyone knows about and uses “licenses for free culture,” yet the data on the value of doing such remains scant. While the IP maximalist community continues to advocate its data sets (research on how IP promotes higher GDP, for ex.), on the other side of the aisle, information is minimally used and rarely collected in advantageous ways. We need to make this information useful and we need to share this information in a way that shows that open, free works increase visability and better community building, which can turn the conversation in our favor. Data on current licensing schemes is minimal, and there’s much work to be done. Let’s focus on defining clear data fields, and getting qualitative social scientists, lawyers, and the quant geeks (aka experts) involved. We need to build out existing and future databases that are conducive for analysis and promote response to empirical surveys from users and non-users.

The session’s key takeaways: 1) we have declining funding for research into the reasons why minimalist IP policies prove beneficial both economically and societally, yet there’s increased pressure to debunk the IP maximalist agenda’s research (which seems unlimited in resources and united in its narrative); 2) we need to better translate why IP activism matters to people in their everyday lives; and 3) we can’t rest until we’ve conducted meaningful research of our own. We need to focus on long-term change and figure out ways to find, present, and disseminate data that promotes our agenda and can serve as the path forward for the IP activist agenda. Good data leads to good policy; the more credible data we can gather, the more effectively we can demand meaningful policy. Until we can compete with the maximalist IP owners’ agenda and articulate a powerful alternative that is as clear and united in its narrative, we will remain on the defensive.