The year of free culture?

Becky Hogge
14 February 2006

2006 is set to be the UK's year of intellectual property. Three separate reviews, two conducted by the British government, and one by a leading thinktank, will examine current patent and copyright law, and their findings will have direct implications for the democratic future of the information society.

How Britain approaches intellectual property reform in the information age will in turn influence the EU's approach, which has, up to now, and especially with regards to the patentability of software and business methods, made a refreshing contrast to the United States' protectionist approach to intellectual property (IP).

Although they are called intellectual property laws, patent and copyright laws are not strictly property laws at all. They are state-granted monopolies, with time limitations, over ideas and their expression respectively. Within a free market orthodoxy, what drives the state to grant these monopolies is the perception that they protect and promote a public good.

Much as the state protected developing rail and communications infrastructure in the twentieth century for the benefit of the public, so ideas and their expression gain a time-limited protection from competition. The time limit is twenty years in the case of patent law, and often over a century in the case of copyright. After this period, ideas are in a sense "deregulated", they are placed in the public domain, where anyone may disseminate and profit from them.

What has this got to do with technology or democracy? The dissemination of intellectual property, or access to knowledge, is one of the key pillars of democracy. As information courses ever more rapidly through the internet, barriers to access are gradually reduced.

But according to received knowledge at least, information, ideas and creative expression are unable to survive in a free market, especially in a free market that embraces the internet.

Once a piece of information has been disseminated, be it a thousand words of copy from a technology columnist or the recipe for a drug that prevents the onset of Aids in HIV sufferers, it becomes difficult for the creators of that information to recoup the resources they invested in it on the free market. The idea is that if we do not allow the creators of knowledge some way to profit from their works before they are copied by all and sundry, they will simply stop creating.

Intellectual property law therefore exists to balance the needs of creators of knowledge with the needs of the public at large to gain access to that knowledge. That balance is both a democratic and an economic imperative. The reason why Britain is embarking on its intellectual property review has less to do with democracy and more to do with Britain and the EU's future success in the global marketplace.

UK folklore has it that the country is becoming a nation of media studies graduates. Although this causes Middle England to grumble, especially when Middle England is trying to find a plumber, it is actually part of New Labour's commitment to the Lisbon Agenda, which pledges to turn the EU into "the most dynamic and competitive knowledge-based economy in the world by 2010".

Also by Becky Hogge, managing editor of openDemocracy:

"Democracy and dissent at the World Intellectual Property Organisation" (April 2005)

"The great firewall of China" (May 2005)

"Mozilla's 'magic pixie dust'" (with Hamza Khan-Cheema, September 2005)

Open source nation” (interview with Geoff Mulgan, September 2005)

"Why the WSIS? Democracy and cyberspace"
(November 2005)

"The online public finds its voice"
(November 2005)

"Global voices: blogging the world"
(December 2005)

"The abuse of "fair use"" (January 2006)

"Some grown-up questions for Google" (February 2006)

If you find this material valuable please consider supporting openDemocracy by sending us a donation so that we can continue our work for democratic dialogue

Britain isn't doing too badly so far: its creative economy is growing at twice the speed of the national economy as a whole. In November 2005, the department for culture, media and sport launched the Creative Economy Programme, a scheme designed to create the best framework for innovation in the UK, a framework that includes intellectual property law. In December, the chancellor Gordon Brown announced a review into intellectual property law headed by Andrew Gowers, former editor of the Financial Times.

If Britain is to come out top in the knowledge economy, it needs to understand new ways of managing intellectual property that have emerged with the information society, existing under the controversial umbrella term "free culture". One such development is the Gnu project's general public licence (or "copyleft"), which nurtures collaborative authorship of software within the open source movement. More recently, Lawrence Lessig's Creative Commons licences have shown how relaxing key areas of traditional copyright can democratise creativity in a new remix culture, facilitated by the wider availability of digital sound and moving image production tools. Within the scientific community, the open access publishing movement is exploring how best to disseminate scientific knowledge in the internet age. And new proposals to decouple research and development from production in the pharmaceutical industry, inspired by the success of the Sanger Institute in mapping the human genome, are gaining gradual support. Will the British government take note of these innovations in their reviews?

Announcing the Gowers review, the Treasury stated that intellectual property rights should provide "the optimal incentives for private industry and individuals to innovate and invest to create value, whilst preventing excessive inefficiencies and monopoly costs which can reduce competition and impede incremental innovation." Although mention of the "new digital environment" is made, this is only in the context of reassessing the "IP infringement framework" in respect of fair use, and doesn't bode well for the inclusion of new forms of IP management. The Gowers review will be evidence-based, and a call for submissions is expected any day now.

The problem here is that very little solid evidence exists to back up either the current framework of intellectual property rights, or any future changes to that framework which either embrace free culture or call for increased IP protection. Kay Withers, research fellow at UK thinktank the Institute for Public Policy Research (ippr), conducted a literature review of existing evidence in her recently published paper, Intellectual Property and the Knowledge Economy, as part of the ippr's twelve month intellectual property project gathering diverse views on the topic. The document makes interesting reading, primarily for the fact that it details patchy and conflicting evidence of whether the intellectual property regime provides any quantifiable difference to innovation at all.

Because extant evidence of the effects of intellectual property laws on innovation is so bitty, it is likely that the vested interests of large media companies will find they have a disproportionately loud voice in the debate. Indeed, when the review was announced, the Treasury was explicit about its desire to review extending the term (ie the length) of copyright on sound recordings, a move the music industry has long been calling for. And at the launch of the ippr project, an executive from a major recording company operating in Britain admitted, to the general disbelief of the audience, that his company had made no contingency plans in terms of his overall business plan for the expiry under current legislation of copyright they owned on sound recordings. Is this a foolhardy level of confidence in the industry's ability to change intellectual property policy to safeguard its interests? Perhaps, if the free culture movement were the only voice of dissent that industry had to contend with. But more establishment players are likely to emerge over the course of this year to challenge the incumbent business view.

At the same time as the UK government is reviewing intellectual property, the BBC plans to submit one of its boldest experiments in a new type of copyright law to its new "public value test", a benchmark created in the BBC Charter Review last year. The Creative Archive, which uses Creative Commons-type agreements to licence the use of BBC and other archive material back to the British public for reuse and remix, will end its pilot phase this year, with the hope of launching fully in 2007.

The Creative Archive may be the first submission to the BBC public value test, and is expected to pass with flying colours. The effect it has had on nurturing innovation will no doubt be a key part of its value to the public, and this should be noted by the Gowers review. The use of a non-commercial Creative Commons-type licence will mean that innovations made through use of Creative Archive material will not have an effect on UK plc, but in terms of capacity-building, the benefits are clear.

Another voice of dissent is raised in the Adelphi Charter, a document prepared by an international commission of experts, including John Howkins of the UK's Royal Society of the Arts, Lynne Brindley of the British Library, James Love of the Consumer Project on Technology, Peter Drahos, co-author of one of the key texts on the global effects of intellectual property law, Information Feudalism, and Brazil's minister of culture, Gilberto Gil.

Thanks to its brevity and clarity, the Adelphi Charter – unlike many government papers on the subject – merits a full and thorough reading by all with an interest in democracy and the dissemination of ideas. It states that, "the expansion in the law's breadth, scope and term over the last 30 years has resulted in an intellectual property regime which is radically out of line with modern technological, economic and social trends. This threatens the chain of creativity and innovation on which we and future generations depend."

The charter has already been translated into six languages and presented to politicians dealing with creativity and intellectual property law in Shanghai, Australia, Hungary and at the UN in Geneva. It will be presented to the Gowers review once the call for submissions has been made.

What is crucial now is that defenders of the public good vested in the democratic dissemination of information step forward to make their voices heard. Expect this columnist to return to the matter, and to amplify these voices, as Britain's year of intellectual property progresses.

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