Open discussion with audience on all sessions
Chair: Prof. Charlotte Waelde (Exeter and chair, Copyright Research Expert Advisory Group CREAG) - hereinafter (CW)
Speakers
Martin Kretschmer - hereinafter (MK)
Tony Clayton (Chief economist, IPO) - hereinafter (TC)
Will Page (Director, Spotify) - hereinafter (WP)
Robin Jacob (Professor, UCL) - hereinafter (RJ)
Simon Stokes (Practitioner, Blake Lapthorn and CIPPM) - hereinafter (SS)
Ruth Towse (Professor, Bournemouth University) - hereinafter (RT)
(CW) I'm Charlotte Waelde, I'm Professor of Intellectual Property Law at the University of Exeter, and I also chair the Copyright Research Expert Advisory Group at the Intellectual Property Office. And one of our tasks in this group is to scrutinise the research that's commissioned by the Intellectual Property Office to ensure that it's robust as a basis to be fed into the policy making process. And a question that came up for us many months ago was what constitutes evidence, good evidence, for copyright policy making. So this session is really incredibly important for feeding into the processes that go into the policy making process that way as well.
Now, you'll see from the agenda that the first three sessions, the policy maker session, the stakeholder session and the social scientist session, each of these were to give their view on evidence for evidence based policy, and this then feeds into the lawyer session, and the lawyers give their response to evidence for evidence based policy. So this is your chance as an audience to give your response to what you've heard so far from all three sessions, and that can in turn feed into the lawyer's thinking so we can get a holistic view about what everybody thinks.
I will say that the most remarkable thing for me so far is the degree of harmony in this room, it's not what I expected at all. I think certainly from experience of research that's done from very different quarters there's always somebody that comes along and says, 'that's no good, the evidence there is nonsense, you can't get to the data underneath, what you're doing doesn't make sense,' and we have had almost none of that in the room today. So, we've either cracked it or people aren't actually saying what they think or sort of they don't want to make ripples if you like. So this is your chance to sort of put out there what you actually think.
The policy makers I thought when they were talking, interestingly there was talk there about policy processes, I think more so perhaps than what actually constitutes evidence, but there was a great deal of agreement as to what should be looked at, and a little bit on the margins about anecdotal evidence and sort of how that should be taken into account, but a great deal of agreement. The stakeholders then, we had a little bit of an issue perhaps over the accessibility of data and we've had the lovely Tarzan economics which have been alluded to several times. We've had issues over uncertainty, but there was also an interesting, I think, point that came up there which was the need for the Intellectual Property Office to follow its own rules on stating what evidence it's basing its guidance or policy making on, which I thought was a really very important point.
We had a lovely, spirited discussion with the social scientists, a very nice discussion I thought between the relative merits of quantitative and qualitative sort of evidence and the respective weights of these, I thought that was a really very interesting discussion, particularly given the move at the moment towards the quantitative data and policy making being based on quantitative data. We also had discussion over peer review, replicability, what should be left out, and I loved the fact that we had an argument between economists over macro and micro economics and evidence, and I thought it's only lawyers that can argue over fundamental principles like that, but it's not, it's economists as well, so I thought that was very heartening.
I have got a good number of questions that strike me from the discussion so far which are based around both the process and the evidence itself and I'll throw it open to the floor in just a minute, but I want to ask a first question, I want to ask Martin, are we answering your question, what constitutes evidence for copyright policy? That's what this whole day is about. Are we answering it?
(MK) Well, Ruth is equally responsible for the question...
(RT) That's a good one... You know that somebody, I think an American president said, 'give me a one handed economist because economists always say, well on the one hand and on the other hand.' So Martin, you're passing the buck.
(MK) Yes. Do I come away from this room knowing more about what evidence might be, what's the nature of evidence, what would be useful for feeding the policy process? I think there are aspects here which I did not see before: there's a tension, on the one hand you've got a very idealistic conception of what good evidence is, a value-free approach, it's what we have in the IPO document and what is the ideal of academic knowledge creation, unbiased and if you do it well enough there's something which is robust and will stand the test of time. Then at some point everybody sees the light and agrees on the correct policy.
I think somehow that at the right moment the idealistic conception of evidence can matter, it can shift policy in one way but it's very rare that that will happen, most of the time it's really just a moderation game in a democratic society which enables power to be negotiated in a particular way, and evidence gathering has to be seen as part of that.
So that's the one end, and the other end is that it depends who has lunch with the minister and the policy over time tends to reflect power structures in society. That's the other position I see. And I think somehow that at the right moment the idealistic conception of evidence can matter, it can shift policy in one way but it's very rare that that will happen, most of the time it's really just a moderation game in a democratic society which enables power to be negotiated in a particular way, and evidence gathering has to be seen as part of that.
So I appear to hold these two conflicting positions simultaneously, on the one hand yes, as an academic, you have to believe that there's a rational approach to these questions, there's a rational way of producing good data and policy, on the other hand I also know now that probably policy making doesn't work that way at all. But I believe at the right moment good evidence can matter. There is really quite a large amount of agreement what good evidence might look like. Still anybody who is a stakeholder will only support what we academics find if it supports their stakeholder interests. Others have made that observation many times before: investing in lobbying pays if the returns you can expect from the change (or non-change) in the law you achieve is greater than the cost of lobbying. But still, it's true. I don't know how coherent that was, but it's at least a statement.
(CW) Thank you. Any...? Yes.
(SS) Simon Stokes, I'm a practitioner and have a different position here. A couple of comments when you talk about evidence for copyright policy. Well almost by its nature if you involve economists you're going to be talking about innovation and you're going to be talking about the economic aspects of copyright, but of course copyright historically exists for various reasons, including the context of property, and the nature of individual human rights. So one question I'd raise is when you look at evidence in terms of moral right aspects of copyright aren't you going to be looking much more towards non-quantitative type areas of evidence. If you focus just on the quantitative evidence you may be missing out on other reasons why copyright exists and why the copyright system exists. That's one question.
And the second question is as a lawyer in terms of evidence, it does seem to me that I think it's very good for Martin to raise evidence on the idealistic/rhetorical basis of arguments for copyright - if assertions are made, for example that copyright or certain aspects of copyright promote innovation you want to measure this. One should try and have evidence to challenge a lot of rhetoric that's used in copyright discourse, and of course a lawyer's job also is to be very critical of evidence, by its nature, because of what it is. At the end of the day you have to look at the assumptions behind how that evidence is collected and the questions that are used to gather the evidence. And so there is no objectivity, I'm a post-modernist in that respect, so that we're talking about contested views here. So I think a lawyer's job is often to try and get those contested views to the surface and then in the policy debate be honest about what it is we're arguing about. Those would be my two thoughts.
(RT) If I could just come back on the moral rights point. I've got a colleague, in fact she's a PhD student, in Iceland who has done a survey of Icelandic artists (AtladottÃr, unpublished) of whom incidentally there are 800, which seems extraordinary in a country of 350,000, but they're rather a good group because they work all over the world, and so they can in a sense compare different author's rights and copyright systems, and she found that moral rights were considered more important than economic rights.
(SS) Academic papers and discourse talk about incentives and there is a school that would challenge incentive arguments, and emphasise the importance of being named, this is a 'creative commons' type argument. Jeanne Fromer (2012) talks about 'expressive incentives' here (the kudos of being creative and getting recognition - copyright creation as an expressive act) rather than just financial ones (cf. Stokes 2012, chapter 2). There are people, economists here, who could construct surveys to look at what motivates creation, whether it's reward or whether it's the reward of being named, of having Kudos.
(CW) Any other comments generally?
(RT) Well, I was going to give a very simple example of what might appear to be objective evidence that's actually been manipulated, which is that if you look at a time series say on economic growth or you're looking for a times series on economic growth, what matters is the end points that you use, because if you start (Tony Clayton is nodding because it's the most obvious thing in the world to people who have worked in macroeconomics) if you start from a year in which there's been a recession and then you go to a year in which there's been a tiny amount of growth you can show this growth, but if you work the other way round it wouldn't. And that's a very common trick when people are providing evidence for a theory about things that they're testing for - it's academics I'm talking about. And the only way that you can check up on that is if the data are either published data and you know exactly where they are so you can go and look at them, or if they're forced, as is the case now in a lot of academic journals in economics, to provide the data or at least to say where the data comes from and so on. It looks objective, you couldn't controvert it but it depends on the dates whether there's been growth or not. It seems like a very simple thing but of course it is not straightforward, it can be manipulated.
(CW) Yes?
(RJ) Yes, a touch of discord. When I was chairman of the Copyright Tribunal we used to have to set the royalty rates and so we had economists and naturally one left handed and one right handed. Later on I wrote a foreword to a book about a copyright tribunal and I suggested a practice direction that each side be deemed to have called in an economist and their evidence cancelled each other out. And the question which has bothered me for a long time is whether economists can add anything to what you can already sort of instinctively feel if you know the facts of how an industry works. And one of the things I feel sometimes the IPO doesn't always fully understand is actually what is real value? So those talks suddenly went from the abstract to how a real industry works, hearing suddenly about performers and the problems they face is actually real evidence of how you're going to make policy. And a real policy question came out there, can one guy hold up the exploitation of every other actor in that thing or should the law be changed so he can't? It's not a question of economic evidence, it's a question of factual evidence as to what's going on. So there you are, that's a bit of a gloom about 'evidence-based'.
(CW) Does anybody want to respond to that? Tony, do you want to respond to that?
(TC) Yes, it wasn't what I wanted to talk about but... Because I think as Robin thinks the answer is quite clear and the opposite of what he thinks. I mean economics is about fact, or it should be. Good evidence is about facts. As I said earlier on, I spent most of the last two days at the OECD (Organisation for Economic Cooperation and Development) trying to figure out how we build international evidence bases for innovation policy. And that's about capturing what happens in industries and businesses or what happens to people and what sort of skills they need to do the things that they want to do. And the analysis we can do on the basis of facts is usually arguable, but the facts themselves shouldn't be. And the problem we have with an awful lot of copyright stuff, and quite a lot of innovation policy, is that we have big holes in the factual interface. And the OECD principle is data first and it actually speaks to a point that I made this morning about the problem of getting the same surveys done in different countries and in the same way so you can compare regulatory systems and legal systems and do the sort of experiments that Robin thinks is impossible and which the OECD does every day. And my view, for what it's worth, is that micro matters most. In all of this stuff micro rules, which I think answers your point actually.
(RJ) Well, for example the Patent Office (IPO, 2010) has done two surveys on thickets. First of all they did their own study, which was top class, because it was somebody actually going out and saying pick an example. They chose the shaver industry and asked, is the whole world of shavers so buggered up with patents that nobody else can make shavers except the people who already do. Answer, no, because somebody went out and looked at the patent claims and they invented their way around, which is what the patent system is for. Then they've got another study coming up with is complete tripe because it's not based on relevant facts at all. It is built around 'triples' which are to do with how many times a patent is cited against a patent application. You can count the numbers of these - but they tell you nothing about (a) why examiners cite (many have favourite citations), (b) about the scope of the claims which matters vitally if you are negotiating your way round - one big patent can be more of a block than a hundred little ones, (c) about the validity of the patents, (d) the opportunities of designing or inventing around. In short the exercise tells you nothing you can usefully use or rely on.
(TC) But it's the behaviour of individuals that determines the response to policy. If you need to look at the facts of the effects of the rules that determines the response to policy because that's what adds up to the impact on the macro economy, but if you can't express it in that way then you don't really have a good story.
(RT) But I also think some of these facts are very difficult, if I could give the example of artists, the sort of work I've done on artists' earnings, I mean the sort of evidence that you can find comes from labour market surveys or surveys of firms, and when you find out what the firms are, they're only firms of a certain size, or the data is based on people who are paying National Insurance contributions or something like that and they're just not getting at the right people. So what you end up with these things is that, in fact what Andrew mentioned earlier, what the average person earns, I mean what you actually want to know is what the median is, what the cut-off point is and so on, and you're just not getting the whole population that you want to study that way (Towse, 2010).
(TC) Well, that data is there if you want to go and find it.
(RT) Yes, but... Ah, well that's the point Sally was going to make, but said I ought to make, but she can make it herself now, which is the cost of getting all this.
(RJ) One other thing is that the Patent Office talk about, and with Tony there maybe it's getting even better, but the most amazing tripe that's come out of the Patent Office, I looked at the Hargreaves figures, actually was it £6.7 billion (Hargreaves, 2011: supporting document EE) it was going to add to the British economy if you implemented the Hargreaves? Something like that. That was a complete tripe that figure, like that of the Minister who introduced the Trade Marks Act. He gave a huge figure for the saving to industry which the new Act would bring about. Actually trade mark departments are much bigger now than they were pre-Act and the Act has been a cost, not a saving, to industry. And that's very worrying, because these figures count not because they are real or even realistic but because people believe them at the time. Likewise policy. I know that Tony doesn't entirely agree with what the government's up to, but without any policy whatever they're going to give permanent monopolies to dead furniture designers.
(CW) Yes, I will wrap it up. I want to hear from Will.
(WP) The other one was just with Spotify is very keen to engage with the academic and policy community. The classic experiment question we have to deal with at Spotify is, do we cannibalise record sales. Cannibalisation is tattooed across copyright holder's foreheads, so you cannot move, you cannot get up in the morning without asking the cannibalisation question. We panic about it, it's like you're paying ten quid a month, we're giving you access to all the world's repertoire, that's a lot of money but does that stop you buying CDs? And if it does are you actually spending more money than £10 a month as opposed to what you spend on CDs which is probably about 40 or 50 quid a year.
So your one example there, just to tee that one up is about Mumford and Sons (https://www.billboard.biz/bbbiz/industry/digital-and-mobile/business-matters-mumford-sons-babel-smashes-1007965972.story), their new album came out in America and number one on Spotify with a record breaking streams count of eight million streams in the first week and number one in the album charts, 600,000 album sales record breaking album sales. And you're just stepping back and thinking how do you solve this experimental question? Daniel Glass who manages Mumford and Sons said, 'we just wanted the fans to get to the content.' And the role of Spotify; let them get to it and work out whether they want to buy it or not. And I just throw it open because of that A versus B experiment is at the heart of our business right now.
(CW) Any final comments? One of my questions was going to be, what are the impediments to developing evidence for copyright policy, but I think I will put it there and leave it there because we need to go on to the next session. We've discussed a little bit I think the impediments, one here is cost and another one is accessibility of data, and I think those two have come up quite strongly, but I'm sure there are others, but I will just put that on the table for people to think about it at the moment as we're ready for the next session.
