Copyright lawmaking is conventionally embedded in a doctrinal tradition that gives much consideration to coherence and formal consistency with legal-theoretical foundations. This contrasts discernibly with the recent trend to base copyright policies and their elaboration into effective legal norms on empirical evidence. Recognizing that both approaches have their relative strengths and weaknesses, this paper explores how evidence-based policy 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 protecting 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.
Stef van Gompel, Copyright, Doctrine and Evidence-Based Reform, JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law 8 (4) 2017.