Internet

Downloaded movie prices are about 30% to 50% higher than buying an actual DVD. That's if you can find the film online

Ask anyone who's studied copyright policy – scholars of music and literature, economists, sociologists, law professors – and they'll tell you that the No 1 problem with copyright is that it is enacted without recourse to evidence.

Professor Ian Hargreaves, the latest eminent scholar commissioned by government to review Britain's copyright policy, lamented that his advice echoed many of his predecessors', none of which had been heeded.

Policymakers are unabashed about the lack of evidence in copyright policy — the EC's 2011 Single Market for Intellectual Property Rights report declares "The case does not need to be made anymore: IPR in their different forms and shapes are key assets of the EU economy." Of course, "the case does not need to be made" is another way of saying, "the case has not been made".

Writing in the Guardian, Ben Goldacre has examined the most-cited statistics about piracy, job creation and GDP contributions in the so-called creative industries and found them so singularly lacking that he declared: "As far as I'm concerned, everything from this industry is false, until proven otherwise."

When Andy Burnham assumed control of the DCMS brief in the last parliament, he acknowledged that the policies of his government had flown in the face of the impartial evidence from the government's commissioned research. But he continued and extended those policies, declaring that his policies wouldn't be evidence-based, but rather based on "the moral case at the heart of copyright law".

Whatever that is.

All this and more is documented in infuriating detail in William Patry's forthcoming book How to Fix Copyright – Patry being America's foremost copyright scholar and author of such standard texts as Copyright Law and Practice.

The UK Open Rights Group (disclosure: I co-founded this group and serve as a volunteer on its advisory board) recently contributed some more evidence to the debate – and its very timely indeed.

ORG and partner Consumer Focus undertook some empirical research on the state of the lawful market for downloadable movies in the UK. This is important because whenever our government or courts undertake to increase penalties for copyright violations – measures such as our nascent national censorship regime for sites that offend the entertainment industry – it is always with a kind of sad head-shake and the lament that despite the healthy, burgeoning lawful market for downloadable material, stubborn pirates continue to take copyrighted works without permission.

ORG's study Can't look now: finding film online investigated the lawful availability of downloads for "recent bestsellers and catalogues of critically acclaimed films, including the top 50 British films" and what they found was that the claims of the lawful market for movies are as evidence-free as the piracy claims they accompany.

Here's what ORG found: though close to 100% of their sample were available as DVDs, more than half of the top 50 UK films of all time were not available as downloads. The numbers are only slightly better for Bafta winners: just 58% of Bafta best film winners since 1960 can be bought or rented as digital downloads (the bulk of these are through iTunes – take away the iTunes marketplace, which isn't available unless you use Mac or Windows, and only 27% of the Bafta winners can be had legally).

And while recent blockbusters fare better, it's still a patchwork, requiring the public to open accounts with several services to access the whole catalogue (which still has many important omissions).

But even in those marketplaces, movies are a bad deal – movie prices are about 30% to 50% higher when downloaded over the internet versus buying the same movies on DVDs. Some entertainment industry insiders argue that DVDs, boxes and so forth add negligible expense to their bottom line, but it's hard to see how movie could cost less on physical DVDs than as ethereal bits, unless the explanation is price-gouging. To add insult to injury, the high-priced online versions are often sold at lower resolutions than the same movies on cheap DVDs.

ORG is generous in their conclusions, absolving the industry of culpability for this problem. Consumers have moved online faster than the film industry whose films they want to watch. They are being confronted with the equivalent of empty shelves. It is unsurprising that many people have found ways of discovering and watching films online from unofficial channels. Blocking all the sites that offer non-licensed content in the world‚ presuming this could be done successfully in practice‚ would not improve a consumer's chances of buying a film online that is not for sale.

But whether or not the film industry can be held blameless for the patchwork, confusing, expensive, second-rate online market for movies, it's clear that punishing people because they're staying away from the market will do no good. It would be smarter to divert the nation's policy to supplying lawful alternatives rather than beating us up for not buying movies that aren't offered for sale in the first place.

Now, here's the question: will government take this evidence on board and act on it, or will they continue the grand, evidence-free tradition?