Chapter 15

offered to license the white pages listings from Rural is because they (mistakenly) thought they were copyrighted. This is unlikely. Most good copyright lawyers would have told you at the time of the Feist case that the "sweat of the brow" decisions that gave copyright protection based on hard work were not good law. Most courts of appeals had said so. True, there was some legal uncertainty, and that is often worth paying to avoid. But switch the question around and suppose it is the day after the Supreme Court decides the Feist case, and Feist is heading off into another market to try to make a new regional phone directory. Do they now just take the numbers without paying for them, or do they still try to negotiate a license? The latter is overwhelmingly likely. Why? Well, for one thing, they would get a computer-readable version of the names and would not have to retype or optically scan them. More importantly, the contract could include a right to immediate updates and new listings. 41

The day after the Feist decision, the only thing that had changed in the telephone directory market was that telephone companies knew for sure, rather than merely as a probability, that if they refused to license, their competitors could laboriously copy their old listings without penalty. The nuclear option was no longer available. Maybe the price demanded would be a little lower. But there would still be lots of good reasons for Feist to buy the information, even though it was uncopyrighted. You do not always need an intellectual property right to make a deal. Of course, that is not the whole story. Perhaps the incentives provided by other methods are insufficient. But in the U.S. database industry they do not seem to have been. Quite the contrary. The studies we have on the European and the American rules on database rights indicate that the American approach simply works better. 42

I was not always opposed to intellectual property rights over data. Indeed, in a book written before the enactment of the Database Directive, I said that there was a respectable economic argument that such protection might be warranted and that we needed research on the issue.5 Unfortunately, Europe got the right without the research. The facts are now in. If the European Database Directive were a drug, the government would be pulling it from the market until its efficacy and harmfulness could be reassessed. At the very least, the Commission needed a detailed empirical review of the directive's effects, and needs to adjust the directive's definitions and fine-tune its limitations. But there is a second lesson. There is more discussion of the empirical economic effects of the Database Directive in this chapter than in the six-hundred-page review of the directive that the European Commission paid a private company to conduct, and which was the first official document to consider the issue. 43

That seemed to me and to many other academics to be a scandal and we said so as loudly as we could, pointing out the empirical evidence suggesting that the directive was not working. Yet if it was a scandal, it was not a surprising one, because the evidence-free process is altogether typical of the way we make intellectual property policy. President Bush is not the only one to make "faith-based" decisions. 44

There was, however, a ray of hope. In its official report on the competitive effects of the Database Directive, the European Commission recently went beyond reliance on anecdote and industry testimony and did something amazing and admirable. It conducted an empirical evaluation of whether the directive was actually doing any good. 45

The report honestly described the directive as "a Community creation with no precedent in any international convention." Using a methodology similar to the one in this chapter on the subject, the Commission found that "the economic impact of the 'sui generis' right on database production is unproven. Introduced to stimulate the production of databases in Europe, the new instrument has had no proven impact on the production of databases."6 46

In fact, their study showed that the production of databases had fallen to pre-directive levels and that the U.S. database industry, which has no such intellectual property right, was growing faster than the European Union's. The gap appears to be widening. This is consistent with the data I had pointed out in newspaper articles on the subject, but the Commission's study was more recent and, if anything, more damning. 47

Commission insiders hinted that the study may be part of a larger--and welcome--transformation in which a more professional and empirical look is being taken at the competitive effects of intellectual property protection. Could we be moving away from faith-based policy in which the assumption is that the more new rights we create, the better off we will be? Perhaps. But unfortunately, while the report was a dramatic improvement, traces of the Commission's older predilection for faith-based policy and voodoo economics still remain. 48

The Commission coupled its empirical study of whether the directive had actually stimulated the production of new databases with another intriguing kind of empiricism. It sent out a questionnaire to the European database industry asking if they liked their intellectual property right--a procedure with all the rigor of setting farm policy by asking French farmers how they feel about agricultural subsidies. More bizarrely still, the report sometimes juxtaposed the two studies as if they were of equivalent worth. Perhaps this method of decision making could be expanded to other areas. We could set communications policy by conducting psychoanalytic interviews with state telephone companies--let current incumbents' opinions determine what is good for the market as a whole. "What is your emotional relationship with your monopoly?" "I really like it!" "Do you think it hurts competition?" "Not at all!" 49

There are also a few places where the reasoning in the report left one scratching one's head. One goal of the database right was to help close the gap between the size of the European and U.S. database markets. Even before the directive, most European countries already gave greater protection than the United States to compilations of fact. The directive raised the level still higher. The theory was that this would help build European market share. Of course, the opposite is also possible. Setting intellectual property rights too high can actually stunt innovation. In practice, as the Commission's report observes, "the ratio of European / U.S. database production, which was nearly 1:2 in 1996, has become 1:3 in 2004."7 Europe had started with higher protection and a smaller market. Then it raised its level of protection and lost even more ground. Yet the report was oddly diffident about the possibility that the U.S. system actually works better. 50

In its conclusion, the report offered a number of possibilities, including repealing the directive, amending it to limit or remove the "sui generis" right while leaving the rest of the directive in place, and keeping the system as it is. The first options are easy to understand. Who would want to keep a system when it is not increasing database production, or European market share, and, indeed, might be actively harmful? Why leave things as they are? The report offers several reasons. 51

First, database companies want to keep the directive. (The report delicately notes that their "endorsement . . . is somewhat at odds with the continued success of U.S. publishing and database production that thrives without . . . [such] protection," but nevertheless appears to be "a political reality.") Second, repealing the directive would reopen the debate on what level of protection is needed. Third, change may be costly. 52

Imagine applying these arguments to a drug trial. The patients in the control group have done better than those given the drug and there is evidence that the drug might be harmful. But the drug companies like their profits and want to keep the drug on the market. Though "somewhat at odds" with the evidence, this is a "political reality." Getting rid of the drug would reopen the debate on the search for a cure. Change is costly--true. But what is the purpose of a review if the status quo is always to be preferred? 53

The final result? Faced with what Commission staff members tell me was a tidal wave of lobbying from publishers, the Commission quietly decided to leave the directive unchanged, despite the evidence. The result itself is not remarkable. Industry capture of a regulatory apparatus is hardly a surprise. What is remarkable is that this is one of the first times any entity engaged in making intellectual property policy on the international level has even looked seriously at the empirical evidence of that policy's effects. 54

To be sure, figures are thrown around in hearings. The software industry will present studies showing, for example, that it has lost billions of dollars because of illicit copying. It has indeed lost profits relative to what it could get with all the benefits of cheaper copying and transmission worldwide and with perfect copyright enforcement as well. (Though the methodology of some of the studies, which assumes that each copier would have paid full price--is ridiculous.) But this simply begs the question. A new technology is introduced that increases the size of your market and decreases your costs dramatically, but also increases illicit copying. Is this cause for state intervention to increase your level of rights or the funds going toward enforcement of copyright law, as opposed to any other law enforcement priority? The question for empirical analysis, both before and after a policy change, should be "Is this change necessary in order to maintain incentives for production and distribution? Will whatever benefits it brings outweigh the costs of static and dynamic losses--price increases to consumers and impediments to future innovators?" The content companies might still be able to justify the extensions of their rights. But they would be doing so in the context of a rational, evidence-based debate about the real goals of intellectual property, not on the assumption that they have a natural right to collect all the economic surplus gained by a reduction in the costs of reproduction and distribution. 55

DOES PUBLIC INFORMATION WANT TO BE FREE? 56

The United States has much to learn from Europe about information policy. The ineffectively scattered U.S. approach to data privacy, for example, produces random islands of privacy protection in a sea of potential vulnerability. Until recently, your video rental records were better protected than your medical records. Europe, by contrast, has tried to establish a holistic framework, a much more effective approach. But there are places where the lessons should flow the other way. The first one, I have suggested, is database protection. The second is a related but separate issue: the legal treatment of publicly generated data, the huge, and hugely important, flow of information produced by government-funded activities--from ordnance survey maps and weather data to state-produced texts, traffic studies, and scientific information. How is this flow of information distributed? The norm turns out to be very different in the United States and in Europe. 57

In one part of the world, state-produced data flows are frequently viewed as revenue sources. They are often copyrighted or protected by database rights. Many of the departments which produce them attempt to make a profit or at least to recover their entire operating costs through user fees. It is heresy to suggest that the taxpayer has already paid for the production of this data and should not have to do so twice. The other part of the world practices a benign form of information socialism. By law, any text produced by the central government is free from copyright and passes immediately into the public domain. The basic norm is that public data flows should be available at the cost of reproduction alone. 58

It is easy to guess which area is which. The United States is surely the profit and property-obsessed realm, Europe the place where the state takes pride in providing data as a public service? No, actually, it is the other way around. 59

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

Change the context and think about how you would react to this if the deal was presented to you personally. You hired an artist to paint a portrait. You offered $500. He agreed. You had a deal. He painted the painting. You liked it. You gave him the money. A few years later he returned. "You owe me another $450," he said. 70

You both looked at the contract. "But you agreed to paint it for $500 and I paid you that amount." He admitted this was true, but pointed out that painters in other countries sometimes received higher amounts, as did sculptors in our own country. In fact, he told you, all painters in our country planned to demand another $450 for each picture they had already painted as well as for future pictures. This would "harmonize" our prices with other countries, put painting on the same footing as sculpture, and enable painters to hire more apprentices. His other argument was that painters often lost money. Only changing the terms of their deals long after they were struck could keep them in business. Paying the money was your duty. If you did not pay, it meant that you did not respect art and private property. 71

You would find these arguments absurd. Yet they are the same ones the record industry used, relying heavily on the confusions against which this book has warned. Is the record companies' idea as outrageous as the demands of my imaginary painter? It is actually worse. 72

The majority of sound recordings made more than forty years ago are commercially unavailable. After fifty years, only a tiny percentage are still being sold. It is extremely hard to find the copyright holders of the remainder. They might have died, gone out of business, or simply stopped caring. Even if the composer can be found, or paid through a collection society, without the consent of the holder of the copyright over the musical recording, the work must stay in the library. These are "orphan works"--a category that probably comprises the majority of twentieth-century cultural artifacts. 73

Yet as I pointed out earlier, without the copyright holder's permission, it is illegal to copy or redistribute or perform these works, even if it is done on a nonprofit basis. The goal of copyright is to encourage the production of, and public access to, cultural works. It has done its job in encouraging production. Now it operates as a fence to discourage access. As the years go by, we continue to lock up 100 percent of our recorded culture from a particular year in order to benefit an ever-dwindling percentage--the lottery winners--in a grotesquely inefficient cultural policy. 74

Finally, fifty years after they were made, sound recordings enter the public domain in the United Kingdom (though as I pointed out earlier, licensing fees would still be due to the composer if the work itself was still under copyright). Now anyone--individual, company, specialist in public domain material--could offer the work to the public. But not if the record companies can persuade the government otherwise. Like my imaginary painter, they want to change the terms of the deal retrospectively. But at least the painter's proposal would not make the vast majority of paintings unavailable just to benefit a tiny minority of current artists. 75

The recording industry's proposal for retrospective extension was effectively a tax on the British music-buying public to benefit the copyright holders of a tiny proportion of sound recordings. The public loses three times. It loses first when it is forced to continue to pay monopoly prices for older, commercially available music, rather than getting the benefit of the bargain British legislators originally offered: fifty years of exclusivity, then the public domain. The public loses a second time when, as a side effect, it is denied access to commercially unavailable music; no library or niche publisher can make the forgotten recordings available again. Finally, the public loses a third time because allowing retrospective extensions will distort the political process in the future, leading to an almost inevitable legislative capture by the tiny minority who find that their work still has commercial value at the end of the copyright term they were originally granted. As Larry Lessig has pointed out repeatedly, the time to have the debate about the length of the copyright term is before we know whose works will survive commercially. 76

The whole idea is very silly. But if this is the silly idea we wish to pursue, then simply increase the income tax proportionately and distribute the benefits to those record companies and musicians whose music is still commercially available after fifty years. Require them to put the money into developing new artists--something the current proposal does not do. Let all the other recordings pass into the public domain. 77

Of course, no government would consider such an idea for a moment. Tax the public to give a monopoly windfall to those who already hit the jackpot, because they claim their industry cannot survive without retrospectively changing the terms of its deals? It is indeed laughable. Yet it is a far better proposal than the one that was presented to the Gowers Review. 78

What happened next was instructive. The Review commissioned an economic study of the effects of copyright term extension--both prospective and retrospective--on recorded music from the University of Cambridge's Centre for Intellectual Property and Information Law. The resulting document was a model of its kind.11 79

With painstaking care and a real (if sometimes fruitless) attempt to make economic arguments accessible to ordinary human beings, the study laid out the costs and benefits of extending the copyright term over sound recordings. It pointed out that the time to measure the value of a prospective term extension is at the moment the copyright is granted. Only then does it produce its incentive effects. The question one must ask is how much value today does it give an artist or record company to have their copyright extended by a year at the end of the existing period of protection. Then one must look to see whether the benefits of the added incentive outweigh the social costs it imposes. To put it another way, if the state were selling today the rights to have protection from year fifty to year ninety- five, how much would a rational copyright holder pay, particularly knowing that there is only a small likelihood the work will even be commercially available to take advantage of the extension? Would that amount be greater than the losses imposed on society by extending the right? 80

Obviously, the value of the extension is affected by our "discount rate"--the annual amount by which we must discount a pound sterling in royalties I will not receive for fifty-one years in order to find its value now. Unsurprisingly, one finds that the value of that pound in the future is tiny at the moment when it matters--today--in the calculation of an artist or distributor making the decision whether to create. Conservative estimates yield a present value between 3 percent and 9 percent of the eventual amount. By that analysis, a pound in fifty years is worth between three and nine pence to you today, while other estimates have the value falling below one penny. This seems unlikely to spur much creativity at the margin. Or to put it in the more elegant language of Macaulay, quoted in Chapter 2: 81

I will take an example. Dr. Johnson died fifty-six years ago. If the law were what my honourable and learned friend wishes to make it, somebody would now have the monopoly of Dr. Johnson's works. Who that somebody would be it is impossible to say; but we may venture to guess. I guess, then, that it would have been some bookseller, who was the assign of another bookseller, who was the grandson of a third bookseller, who had bought the copyright from Black Frank, the Doctor's servant and residuary legatee, in 1785 or 1786. Now, would the knowledge that this copyright would exist in 1841 have been a source of gratification to Johnson? Would it have stimulated his exertions? Would it have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen? Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly believe not. I firmly believe that a hundred years ago, when he was writing our debates for the Gentleman's Magazine, he would very much rather have had twopence to buy a plate of shin of beef at a cook's shop underground.12 82

The art form is different, but the thought of a 1960s Cliff Richard or Ian Anderson being "cheered under a fit of the spleen" by the prospect of a copyright extension fifty years hence is truly a lovely one. 83

Considering all these factors, as well as the effects on investment in British versus American music and on the balance of trade, the Cambridge study found that the extension would cost consumers between 240 and 480 million pounds, far more than the benefits to performers and recording studios. (In practice, the report suggested, without changes in the law, most of the benefits would not have gone to the original recording artist in any case.) It found prospective extension led to a clear social welfare loss. What of retrospective extension? 84

The report considered, and found wanting, arguments that retrospective extension is necessary to encourage "media migration"--the digitization of existing works, for example. In fact, most studies have found precisely the reverse--that public domain works are more available and more frequently adapted into different media. (Look on Amazon.com for a classic work that is out of copyright--Moby-Dick, for example--and see how many adaptations and formats are available.) It also rejected the argument that harmonization alone was enough to justify extension--retrospective or prospective--pointing out the considerable actual variation in both term and scope of rights afforded to performers in different countries. Finally, it warned of the "hidden 'ratcheting' effect of harmonisation which results from the fact that harmonisation is almost invariably upwards." Its conclusion was simple: 85

[R]etrospective term extensions reduce social welfare. Thus, in this case, it would seem that basic theory alone is sufficient to provide strong, and unambiguous, guidance for policy-makers. . . . We therefore see no reason to quarrel with the consensus of the profession on this issue which as summed up by Akerlof et al. . . . [states] categorically that . . . "[retrospective] extension provides essentially no incentive to create new works. Once a work is created, additional compensation to the producer is simply a windfall."13 86

The Gowers Review agreed. Its fourth recommendation read simply, "Policy makers should adopt the principle that the term and scope of protection for IP rights should not be altered retrospectively." Perhaps more important, though, was the simple paragraph at the front of the document captioned "The Approach of the Review." It begins thus: "The Review takes an evidence- based approach to its policy analysis and has supplemented internal analysis by commissioning external experts to examine the economic impact of changes. . . ." 87

Why specify that one was taking an "evidence-based" approach? At first, the comment seems unnecessary. What other approach would one take? Anecdotal? Astrological? But there is a framework in which empirical evidence of the effects of policy simply seems irrelevant--one based on natural right. When the Review was given to the House of Commons Select Committee on Culture, Media and Sport, that frame of mind was much in evidence: 88

The Gowers Review undertook an extensive analysis of the argument for extending the term. On economic grounds, the Review concluded that there was little evidence that extension would benefit performers, increase the number of works created or made available, or provide incentives for creativity; and it noted a potentially negative effect on the balance of trade. . . . Gowers's analysis was thorough and in economic terms may be correct. It gives the impression, however, of having been conducted entirely on economic grounds. We strongly believe that copyright represents a moral right of a creator to choose to retain ownership and control of their own intellectual property. We have not heard a convincing reason why a composer and his or her heirs should benefit from a term of copyright which extends for lifetime and beyond, but a performer should not. . . . Given the strength and importance of the creative industries in the U.K., it seems extraordinary that the protection of intellectual property rights should be weaker here than in many other countries whose creative industries are less successful.14 89

A couple of things are worth noting here. The first is that the Committee is quite prepared to believe that the effects of term extension would not benefit performers or provide incentives for creativity, and even to believe that it would hurt the balance of trade. The second is the curious argument in the last sentence. Other countries have stronger systems of rights and are less successful. We should change our regime to be more like them! Obviously the idea that a country's creative industries might be less successful because their systems of rights were stronger does not occur to the Committee for a moment. Though it proclaims itself to be unaffected by economic thought, it is in fact deeply influenced by the "more rights equals more innovation" ideology of maximalism that I have described in these pages. 90

Nestling between these two apparently contradictory ideas is a serious argument that needs to be confronted. Should we ignore evidence--even conclusive evidence--of negative economic effects, harm to consumers, and consequences for the availability of culture because we are dealing with an issue of moral right, almost natural right? Must we extend the rights of the artists who recorded those songs (or rather the record companies who immediately acquired their copyrights) because they are simply theirs as a matter of natural justice? Do performers have a natural right to recorded songs either because they have labored on them, mixing their sweat with each track, or because something of their personality is forever stamped into the song? Must we grant an additional forty-five years of commercial exclusivity, not because of economic incentive, but because of natural right? 91

Most of us feel the pull of this argument. I certainly do. But as I pointed out in Chapter 2, there are considerable problems with such an idea. First, it runs against the premises of actual copyright systems. In the United States, for example, the Constitution resolutely presents the opposite picture. Exclusive rights are to encourage progress in science and the useful arts. The Supreme Court has elaborated on this point many times, rejecting both labor-based "sweat of the brow" theories of copyright and more expansive visions based on a natural right to the products of one's genius--whether inventions or novels. Britain, too, has a history of looking to copyright as a utilitarian scheme--though with more reference to, and legal protection of, particular "moral rights" than one finds in the United States. But even in the most expansive "moral rights" legal systems, even in the early days of debate about the rights of authors after the French Revolution, it is accepted that there are temporal limits on these rights. If this is true of authors, it is even more true of performers, who are not granted the full suite of author's rights in moral rights jurisdictions, being exiled to a form of protection called "neighboring" rights. 92

In all of these schemes, there are time limits on the length of the rights (and frequently different ones for different creators--authors, inventors, performers, and so on). Once one has accepted that point, the question of how long they should be is, surely, a matter for empirical and utilitarian analysis. One cannot credibly say that natural rights or the deep deontological structure of the universe gives me a right to twenty-eight or fifty-six or seventy years of exclusivity. The argument must turn instead to a question of consequences. Which limit is better? Once one asks that question, the Gowers Review's economic assessment is overwhelming, as the Select Committee itself recognized. In the end, the government agreed--noting that a European Union study had found precisely the same thing. The sound recording right should not be extended, still less extended retrospectively. The evidence-free zone had been penetrated. But not for long. As this book went to press, the European Commission announced its support for an even longer Europe-wide extension of the sound recording right. The contrary arguments and empirical evidence were ignored, minimized, explained away. How can this pattern be broken? 93

In the next and final chapter, I try to answer that question. I offer a partial explanation for the cognitive and organizational blindnesses that have brought us to this point. I argue that we have much to learn from the history, theory, and organizational practices of the environmental movement. The environmental movement taught us to see "the environment" for the first time, to recognize its importance, and to change the way we thought about ecology, property, and economics in consequence. What we need is an environmentalism of mind, of culture, of information. In the words of my colleague David Lange, we need to "recognize the public domain." And to save it.