What would copyright law look like if economists held the pen?

So yet another study finds that there is a small, positive correlation between illegal downloading and music sales (h/t Geist, Knopf, Torrent Freak and others). In basic English: Illegal downloads don’t harm music sales. Let’s put it even more simply: At the very least, piracy does no harm to music sales, and may even help them.

In a world of rational policymaking, these findings would land like a bombshell. Studies like this undercut the entire rationale for the past decade-and-a-half of global copyright reforms. The very existence of copyright is based on the assumption that stronger protection = more creation. And yet studies like the one linked to above suggest that this relationship doesn’t hold.

In their book Against Intellectual Monopoly, economists Michele Boldrin and David K. Levine compare intellectual property to the mercantilist approach to trade that was undercut by David Ricardo’s revolutionary notion of comparative advantage in the 1800s. Like the situation today with intellectual property, mercantilism was defended by interest groups that benefited from the dominant regime even as economists like Ricardo and Adam Smith demolished mercantilism’s flimsy intellectual foundations (as it then existed).

Eventually, Smith and Ricardo won the argument. Will the same thing happen with intellectual property? I have no idea. It would be a nice start if we, as copyright scholars, at the very least, began all discussions of copyright reform not from the starting point of the law as it currently stands, but from empirical considerations about the actual effects of copyright law on the market for creative works. Maybe it’s time we all started thinking like economists.

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