Copyright, Doctrine and Evidence-Based Reform

• Author: Stef van Gompel
• Pages: 304-310

2017

Stef van Gompel

304

4

Copyright, Doctrine and

Evidence-Based Reform

by Stef van Gompel*

© 2017 Stef van Gompel

Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and

conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8.

Recommended citation: Ste f van Gompel, Copyright, Doctrin e and Evidence-Based Reform, 8 (2017) JIPITEC 30 4 para 1.

icy can be reconciled with the traditional doctrinal

approach to copyright lawmaking. It suggests that

unproven doctrinal constellations that unnecessarily

focus the legislative intention unequally on protect-

ing copyright holders should be removed, but that

lawmakers at the same time should also not stare

blindly on economic evidence if legitimate claims

based on fairness rationales are put forward, which

also have to be weighed in as evidence.

Abstract: Copyright lawmaking is conven-

tionally embedded in a doctrinal tradition that gives

much consideration to coherence and formal consis-

tency with legal-theoretical foundations. This con-

trasts discernibly with the recent trend to base copy-

right policies and their elaboration into effective legal

norms on empirical evidence. Recognizing that both

approaches have their relative strengths and weak-

nesses, this paper explores how evidence-based pol-

A. Introduction

1 In an ideal world, copyright law is based on sound,

reliable and impartial evidence that thoughtfully

and meticulously balances the full breath of often

diverging or competing interests of all stakeholders

involved.1 This suggests that any new legislation must

* Dr. S.J. van Gompel is senior researcher at the Institute for

Information Law (IViR) of the University of Amsterdam.

The research for this paper was conducted within the

framework of the research programme Veni with project

number 451-14-033 (“The challenge of evidence-based

intellectual property law reform: Legal pragmatism meets

doctrinal legal reasoning”), which is partly nanced by the

Netherlands Organisation for Scientic Research (NWO).

An earlier version of this paper was discussed at the ALAI

2017 Congress “Copyright - to be or not to be”, which was

held in Copenhagen, Denmark on 17-20 May 2017. I thank

the participants of that conference for their remarks and

suggestions, which helped me to improve the paper. Any

errors are my own.

1 E. Derclaye, ‘Today’s Utopia Is Tomorrow’s Reality’ [2017]

IIC 1.

be carefully prepared by assessing and taking into

account all the different – legal, social and economic

– dimensions of the proposed measure, including all

relevant empirical facts. Additionally, the legislative

process must be clear and open to public scrutiny, so

as to ensure the legitimacy and public acceptability

of the law. This requires adequate transparency

about all the evidence considered, including how

much it has weighed into the norm-setting, which

information gaps nonetheless existed, and how

these gaps have been lled or dealt with. Moreover,

it must be clear how different interests of relevant

stakeholders are balanced and eventually reected

in the law as adopted.

2 Despite best efforts and good intentions of law and

policy makers, such an ideal norm-setting scenario

hardly ever materializes in practice.2 Often, it is

2 See B.H. Mitra-Kahn, ‘Copyright, Evidence and Lobbynomics:

The World after the UK’s Hargreaves Review’ (2011) 8 Review

of Economic Research on Copyright Issues 65, giving a number

of reasons why policy makers are struggling to adequately

ground copyright policy in evidence. See also I. Hargreaves,

Keywords: Copyright reform; lawmaking approaches; evidence-based policy; doctrinal underpinnings; economic

evidence