Take weather data. The United States makes complete weather data available to all at the cost of reproduction. If the superb government Web sites and data feeds are insufficient, for the cost of a box of blank DVDs you can have the entire history of weather records across the continental United States. European countries, by contrast, typically claim government copyright over weather data and often require the payment of substantial fees. Which approach is better? I have been studying the issue for fifteen years, and if I had to suggest a single article it would be the magisterial study by Peter Weiss called "Borders in Cyberspace," published by the National Academies of Science.8 Weiss shows that the U.S. approach generates far more social wealth. True, the information is initially provided for free, but a thriving private weather industry has sprung up which takes the publicly funded data as its raw material and then adds value to it. The U.S. weather risk management industry, for example, is more than ten times bigger than the European one, employing more people, producing more valuable products, generating more social wealth. Another study estimates that Europe invests 9.5 billion Euros in weather data and gets approximately 68 billion back in economic value—in everything from more efficient farming and construction decisions to better holiday planning—a sevenfold multiplier. The United States, by contrast, invests twice as much—19 billion—but gets back a return of 750 billion Euros, a thirty-nine-fold multiplier. 60
Other studies suggest similar patterns elsewhere, in areas ranging from geospatial data to traffic patterns and agriculture. The "free" information flow is better at priming the pump of economic activity. 61
Some readers may not thrill to this way of looking at things because it smacks of private corporations getting a "free ride" on the public purse—social wealth be damned. But the benefits of open data policies go further. Every year the monsoon season kills hundreds and causes massive property damage in Southeast Asia. One set of monsoon rains alone killed 660 people in India and left 4.5 million homeless. Researchers seeking to predict the monsoon sought complete weather records from the United States and Europe so as to generate a model based on global weather patterns. The U.S. data was easily and cheaply available at the cost of reproduction. The researchers could not afford to pay the price asked by the European weather services, precluding the "ensemble" analysis they sought to do. Weiss asks rhetorically, "What is the economic and social harm to over 1 billion people from hampered research?" In the wake of the outpouring of sympathy for tsunami victims in the same region, this example seems somehow even more tragic. Will the pattern be repeated with seismographic, cartographic, and satellite data? One hopes not. 62
The European attitude may be changing. Competition policy has already been a powerful force in pushing countries to rethink their attitudes to government data. The European Directive on the Reuse of Public Sector Information takes large strides in the right direction, as do studies by the Organization for Economic Co-operation and Development (OECD) and several national initiatives.9 Unfortunately, though, most of these follow the same pattern. An initially strong draft is watered down and the utterly crucial question of whether data should be provided at the marginal cost of reproduction is fudged or avoided. This is a shame. Again, if we really believed in evidence-based policy making, the debate would be very different. 63
BREAKING THE DEAL 64
What would the debate look like if we took some of the steps I mention here? Unfortunately there are very few examples of evidence-based policy making, but the few that do exist are striking. 65
In 2006, the government-convened Gowers Review of intellectual property policy in the United Kingdom considered a number of proposals on changes to copyright law, including a retrospective extension of sound recording copyright terms.10 The copyright term for sound recordings in the United Kingdom is fifty years. (It is longer for compositions.) At the end of the fifty-year period, the recording enters the public domain. If the composition is also in the public domain—the great orchestral works of Beethoven, Brahms, and Mozart, for example, or the jazz classics of the early twentieth century—then anyone can copy the recording. This means we could make it freely available in an online repository for music students throughout Britain—perhaps preparing the next generation of performers—or republish it in a digitally cleansed and enhanced edition. If the composition is still under copyright, as with much popular music, then the composer is still entitled to a licensing fee, but now any music publisher who pays that fee can reissue the work—introducing competition and, presumably, bringing down prices of the recording. 66
The recording industry, along with successful artists such as Sir Cliff Richard and Ian Anderson of Jethro Tull, wished to extend the fifty-year term to ninety-five years, or perhaps even longer—the life of the performer, plus seventy years. This proposal was not just for new recordings, but for the ones that have already been made. 67
Think of the copyright system as offering a deal to artists and record companies. "We will enlist the force of the state to give you fifty years of monopoly over your recordings. During that time, you will have the exclusive right to distribute and reproduce your recording. After that time, it is available to all, just as you benefited from the availability of public domain works from your predecessors. Will you make records under these terms?" 68
Obviously, fifty years of legalized exclusivity was enough of an incentive to get them to make the music in the first place. We have the unimpeachable evidence that they actually did. Now they want to change the terms of the deal retrospectively. They say this will "harmonize" the law internationally, give recordings the same treatment as compositions, help struggling musicians, and give the recording industry some extra money that it might spend on developing new talent. (Or on Porsches, shareholder dividends, and plastic ducks. If you give me another forty-five years of monopoly rent, I can spend it as I wish.) 69