James Boyle at London’s Financial Times wonders what is it that compels us to create such totally screwed up copyright laws. He’s speaking specifically of Europe.

The first thing to realize is that many decisions are driven by honest delusion: the more intellectual property rights we create, the more innovation. This is clearly wrong; rights raise the cost of innovation. Do their monopolistic and anti-competitive effects outweigh their incentive effects? That’s the central question, but many of our decision makers seem never to have thought of it.

The point was made by an exchange inside the Committee that shaped Europe’s ill-starred Database Directive. It was observed that the US, with no significant property rights over unoriginal compilations of data, had a much larger database industry than Europe which already had significant ”sweat of the brow” protection in some countries. Europe has strong rights, the US weak. The US is winning.

Did this lead the committee to wonder for a moment whether Europe should weaken its rights? No. Their response was that this showed we had to make the European rights much stronger.

And of course it hasn’t worked. One problem is that, while the public domain is the source of creativity, it has no organized advocates to speak before legislative bodies.

At my university, we set up The Center for the Study of the Public Domain to study the contributions of the public domain to creativity. We found we were the only such academic centre in the world. At first that made us feel innovative. Later it made us worried. If we don’t look at the evidence and we ignore the role of the public domain in fostering innovation, how can we possibly hope to make good policy?

I’d argue that maximalism, as he calls it, is an inherent flaw in many legislative bodies. Legislative bodies rarely give up ground. If a poor decision is made, it cannot be given back up. If a decision appears to fail, it can only be because the decision didn’t go far enough. So poor decisions are buttressed with even worse decisions.

Justifying the previous decision becomes the point, rather than solving the problem that the previous decision was made to solve.