The future of intellectual property: Andrew Gowers interviewed

About the author
Becky Hogge is a freelance writer and broadcaster. She is the former executive director of the Open Rights Group, a London-based campaigning organisation that fights for civil and consumer rights in the digital age. She was previously the managing editor, and then technology director, of openDemocracy.net. She blogs here, and co-presents acclaimed London radio show Little Atoms. Her first book, Barefoot into Cyberspace, was published in summer 2011

"Look at the debates that there have been on intellectual property since the arrival of the internet. They have been loud and shallow. They have been between people who say everything's free and you shouldn't pay for anything and people who say everything's mine, and you should pay for everything. And actually neither of them are right." Andrew Gowers is sitting in a back room of the British government's vast Treasury building. It's just a few hours after the launch of his year-long review of the framework governing intellectual property, a text he hopes will change the nature of the debate not just in Britain, but internationally.

The Gowers Review of Intellectual Property has been broadly welcomed by copyright campaigners. Lawrence Lessig, the godfather of Creative Commons, has labelled research conducted into the economics of copyright extension "fantastic", urging all governments to "muster the courage to follow this advice"; the Open Rights Group has said they are "delighted" by his evidence-based approach. In total, the report makes over fifty recommendations, some which can be implemented by the government immediately, and others that speak to reform in the European Union and even the World Trade Organisation.

The recommendations cover everything from the balance, flexibility and coherence of the individual instruments of intellectual property law (patents, copyright, trademarks, for example), to the access, enforcement and governance issues that surround them. Key recommendations include:

  • new exceptions to copyright law to make it more flexible for the digital age
  • a limited private copying exception to allow consumers to shift music they own on CDs into mp3 format
  • research and library exceptions appropriate to the digital age
  • exceptions for derivative works and caricature, parody or pastiche
  • a new deal for "orphan works", works still in copyright but out of print, to make them more readily accessible to the general public.
To those campaigners used to banging their heads against a legislative brick wall when it comes to copyright reform, the report is refreshing, even radical.

openDemocracy's "the people vs copyright" debate includes:

Richard Stallman, "Let's share!"
(30 May 2002)

Siva Vaidhyanathan, "The contract of copyright: towards an ethical cynicism"
(10 July 2002)

Bill Thompson, "Play fair: the evolution of copyright"
(16 October 2002)

Becky Hogge, "Democracy and dissent at the World Intellectual Property Organisation"
(26 October 2005)

Be flexible - within the law

"It's not radical in the sense that it does not throw into question the fundaments of the IP system", explains Gowers. "But it is kind of radical in the sense that it doesn't take anything for granted. My view is that for far too long intellectual property has been a priesthood on the one hand and a lobbyists' playground on the other. A priesthood in the sense that it is enacted by these quite funny men of a certain age in legal chambers, dusty files all around them and so forth. And a lobbyists' playground in the sense that the people who are IP holders, the people who say more IP protection is good are well-organised and well-focussed, articulate and well-financed. And the people who actually pay for it, in terms of consumers, are diffuse. So up until now it's been a one way argument."

The review has demonstrated how this situation is changing. It attracted a record number of submissions to its call for evidence in February 2006, and Gowers was "positively surprised" by the breadth and quality of the arguments put forth. "We had a man who specialises in transferring 78rpm vinyl recordings of highland bagpipes to digital form and wrote to us saying you can't extend the copyright term because you'll put me out of business", recalls Gowers. The submissions led to what he characterises as "real debate": "Obviously people thought that there were real issues that needed looking at which was a great confirmation of the reason we'd been called into existence".

But, admits Gowers, "in terms of volume, legal expense and the amount of time people had spent on it, the music industry gets the prize". As expected, the report has presented compelling evidence for rejecting their call for an extension to the copyright term in sound recordings, an issue that has become central to the publicity surrounding the report. A statement issued by the British Phonographic Institute says that "Gowers' failure to recommend term extension is a missed opportunity", and that industry will "press on" with their calls for reform, at European Union level.

But the industry can take heart in many of Gowers' other recommendations, in particular those related to enforcement of copyright infringement. IP crime should be recognised as "an area for police action", and the way internet service providers and rightsholders share data in the context of online piracy should be "observed" with a view to possible legislation at the end of 2007.

Gowers calls flexibility and enforcement "two sides of the same coin". This view is reinforced by point 3.26 of the report: "Copyright in the UK presently suffers from a marked lack of public legitimacy. It is perceived to be overly restrictive, with little guilt or sanction associated with infringement." It is only in making copyright into an instrument people can understand and respect, through lifting some of its restrictions, that proper enforcement can be justified and pursued. But, as Gowers himself admits, the recommendations for enforcement and the provisions for increased flexibility will be pursued in vastly different forums.

"I think that the enforcement issues can be addressed by national measures quite close up. Putting the police on to enforce IP, giving money to Trading Standards and enhancing their powers - you can see the effects of that within a few months. The questions about introducing some of the exceptions we've asked for, about making copyright law as flexible and as modern as possible, they take more time because in some cases we have to work through Europe. But I think that as long as the direction of travel is clear, it's not going to get out of balance."

Be European - and look beyond

The copyfight, it seems, has only just begun. Campaigners, who saw significant success in Brussels last year against software patents (an outcome endorsed and strengthened by Gowers in his report), must once again decamp to Europe and make their voices heard. Will the Gowers review mean that this time around they can expect to have allies in high places?

Gowers is confident. "The government has said they're going to act on it", he says, "I think Britain is very well placed to be a leader on this issue. Britain's government over the years, both parties, have embraced globalisation more openly and honestly than many others and this report in a way is a part of that." And what about Europe? "Angela Merkel [the German chancellor] wants innovation and IP to be at the centre of her country's European Union presidency in the first half of 2007. It's for the British government to decide, but frankly I hope that this report will be a good text for the government to talk to the German government about what to do in that crucial period."

Some aspects of the report look beyond even the European Union, towards the World Trade Organisation (WTO), and its compulsory intellectual-property treaty, Trips (trade-related aspects of intellectual-property rights). The review questions the coherence of the Trips strategy, which asks developing nations to adopt wholesale an industrialised-nation-scale intellectual-property regime, when industrialised nations owe much of their development success to being able to imitate one another's inventions. As such, the review recommends that Britain should help developing nations to take advantage of exceptions to Trips, and that the WTO should be encouraged to extend the deadline for the least-developed-countries' compliance to Trips, as well as supporting proposed amendments that will make the importation of drugs easier, and cheaper.

The review seems to imply that, with hindsight, the international community shouldn't have rushed into Trips quite as quickly as it did. Is this his view? "I'll say this about Trips", Gowers responds "In the world today, it would be absolutely impossible to negotiate something like Trips. It's amazing to me that the WTO and its members were able to pull that off. There are two reasons why that wouldn't happen now. One is because world trade talks are very difficult anyway. The other is that some of its provisions do not look to me to be wise. And of course we're not proposing reopening the whole thing. But we're saying - not in so many words but this is the subtext - that if you look at the whole swathe of developing countries, from the successful ones to the poor ones, does the one-size-fits-all approach really work? The answer is, it makes no sense. And we suggest taking a pragmatic approach to that."

As our interview draws to a close, Andrew Gowers pauses for thought, then smiles. "I think that might ruffle the dovecotes in a few pillars of conventional wisdom."

The Gowers review, published on 6 December 2006, has already provoked a range of responses from IP experts:

"It is because the future success of our creative and knowledge based industries depends upon Britain having a robust intellectual property regime that the secretary for industry is announcing today he will tighten the penalties for copying and piracy while giving individuals new rights for personal use" - Gordon Brown, chancellor of the exchequer, in his pre-budget report

"This review is the most important critique of intellectual property in the UK of recent years, and we are delighted to see that the majority of its recommendations are sensible and constructive" - Suw Charman, Open Rights Group

"The review is thoughtful and persuasive, particularly on term extension. It places in one document a review of the arguments for extension — and disposes of each. One hopes the government is reading carefully" - Jonathan Zittrain, Oxford Internet Institute

"The only people to benefit from term extension would be the giant traditional media groups - artists would actually benefit more from letting music enter the public domain…The conclusion of the Gowers review that copyright term should not be extended is the correct one; we should not follow the lead of the US who have submitted to corporate demands by Big Media. Here we can recognise that music is a key part of our culture, (and, indeed, a key export), that recycling is a natural part of musical creativity and that not extending the existing copyright term will promote the creation of UK music" - Matt Black (Coldcut), musician

"We will continue to make the case to the UK government for term extension. As Mr Gowers says, the decision on extension is ultimately for the European Commission and we will be putting our case vigorously when it reviews the relevant directive next year" - Peter Jamieson, chairman, British Phonographic Institute