Let the IP debate begin …

Becky Hogge
5 December 2006

This should be the week in which the real debate about intellectual property can finally begin. At just after noon GMT on 6 December 2006, Gordon Brown - chief architect of the United Kingdom's economic policy, and likely next prime minister - will deliver his pre-budget report to the House of Commons. Attached to this report will be the Gowers Review of Intellectual Property, a study that has been a year in the making.

Andrew Gowers, a former editor of the Financial Times, was tasked by the treasury in December 2005 to investigate what changes, if any, needed to be made to the country's intellectual-property (IP) framework in order to "balance the need to encourage firms and individuals to innovate and invest in new ideas and creative works with the need to ensure that markets remain competitive and that future innovation is not impeded."

The review has attracted submissions from the British Library to the National Union of Journalists, from digital-rights campaigners to the Open Rights Group to recording industry representatives the British Phonographic Institute (BPI). All in all, around 500 individuals and organisations submitted evidence to the review, a figure widely believed to have set a record for submissions to any independent review commissioned by the UK government.

Why has there been so much interest? Perhaps because, until this point, there has been no effective, accessible forum for debating IP in the UK - or indeed anywhere. "The sense that democratic dialogue is failing on this topic is a serious one", write Kay Withers and William Davies of the Institute for Public Policy Research in their recent paper Public Innovation, concluding a nine-month research project into the UK's current intellectual-property framework. Gowers, it seems, opened the doors to such a dialogue. How his review is interpreted by government later this week will be crucial.

But first, it's worth examining why intellectual property has been such an accountability black hole for so long. Intellectual-property law is a highly technical field, as are many of the areas of knowledge production (such as computing or biosciences) to which it applies. This serves to exclude all but the most dedicated democrats from subjecting it to scrutiny. "For a long while," observe Withers and Davies, "the legal mechanisms that made up the [intellectual property] regime were deemed to be a specialist issue that required little input or oversight from politicians and citizens."

Rather than serious overview, then, the public is granted tiny windows onto the machinations of intellectual property, in the shape of vignettes picked up by the press. Stories that relate to flaws in the intellectual-property regime crop up in the most unexpected of places, and are often so eccentric or esoteric that it is not easy to see the connections between them.

So, as citizens, we can observe that life-saving anti-retroviral drugs - which can slow or reverse HIV before it develops into Aids - are being denied to South Africans because of rows over pharmaceutical patents, or that American girl scouts are threatened with legal action for singing campfire songs without a licence, without necessarily connecting those reports to a common phenomenon. Too often, journalists do not have the knowledge, the space or the patience to familiarise their readers with the equilibrium of individual reward and public benefit enshrined in patent and copyright law, and the wider picture goes unseen.

The IP balance

At the heart of intellectual-property law is a balance between economic and civic interest. Patents and copyrights grant inventors and creators time-limited monopolies over the distribution and exploitation of their work, in order to encourage them to create that work. After that limited time is up, inventions and creations, from the light bulb to The Unbearable Lightness of Being, enter the public domain in order to inspire future generations of engineers and enigmatists. In copyright law, other civil and consumer rights must be accounted for even during this time-limited monopoly stage - such as the right to speak freely about a copyrighted work, or to convert it into formats that are, for example, accessible to the blind.

From afar, this balance might seem very grown-up, and indeed not a little technical. But too often this balance polarises debate, with those claiming economic interest in IP practice and reform in one corner and those who claim a civic interest in the other. Thanks to the consolidation of rightsholder groups - from publishers to movie-makers, record labels to television networks - into multinational media corporations, those claiming economic interests often have the far-stronger voice and use it to lobby for blanket extension of (especially) copyright in term and scope. Those claiming a civic interest are represented by less-powerful consumer and civic-rights groups, who have the much harder task of arguing against short-term corporate profits and in favour of long-term public interest.

But it shouldn't have to be this way. As Public Innovation adeptly identifies, the public domain has an economic value as well as a social one. "Publicly available resources perform a variety of important functions in the economy," they write, citing the free flow of information, a vibrant public culture and an accessible educational system as major, if not easily quantified, ways in which the public domain contributes to UK plc. Therefore, as the Adelphi Charter has identified, copyrights and other intellectual property rights should not be extended without "rigorous analysis clearly demonstrat[ing] that it will promote people's basic rights and economic well-being."

Basic rights are coming more and more into conflict with intellectual property law, as human progress comes to rely on such information-based sectors as technology and bioscience. Indeed, thanks to the World Trade Organisation's trade-related agreement on intellectual property (Trips) - itself brought into being without much public scrutiny - the issue is likely to have a growing effect on development and trade justice. But rightsholder lobbies very often refuse to address this argument, instead trotting out rhetoric that addresses only one side of the intellectual-property balance. Indeed, as one member of the audience remarked at the recent launch of a British Council Counterpoint pamphlet on new intellectual property frameworks: "There are two sides on this debate - those that want to have it and those that don't."

The UK story

In the UK mainstream press, the story that has emerged as the handmaiden to Gowers is that of copyright term extension on sound recordings. Although this proposal forms only a tiny part of the review, the attention that has been focussed on it not only substantiates many of the points made above, it also means that how Gordon Brown responds to it speaks to the integrity of the entire project.

Currently protected for fifty years, the recording industry is lobbying for sound recordings to have copyright protection for ninety-five years, and for the extension of copyright protection to be retrospective. Various arguments are put forward for this request - that the industry needs back-catalogue profits to invest in new artists, or that aging recording artists need royalty payments as a pension. Camera-friendly stars like Katie Melua and household names like Mick Hucknall and Cliff Richard have been dispatched to make the case for extending terms. The mainstream media, eager for the eyeballs these names attract, have published their complaints verbatim.

Yet actual figures produced by the industry show that profits lost from fifty-year-old sound recordings entering the public domain amount to - at the very most - 0.2% of the industry's annual contribution to the UK's GDP. All the evidence points away from an extension. The authors of Public Innovation state clearly that "we have not seen any evidence to suggest that current protections provided in law are insufficient. We feel that to extend terms any further than their current length is economically illogical and anti-competitive." And last week, a "well-placed government source" told the BBC that Gowers, having examined the evidence, would also recommend that the term should not be extended.

The Gowers leak caused outcry in the recording industry. The press machine went into overdrive, with articles appearing in one publication or another nearly every day last week, on how recording artists had "lost the battle" with Gowers. Speaking to the Guardian, Peter Jamieson, the chairman of the BPI, urged the government to use its power to ignore Gowers's recommendation, while Fran Nevrkla, chief executive of rights societies Phonographic Performance Ltd (PPL) and Video Performance Ltd (VPL), "sincerely hoped the government will not duck this critical issue by conveniently hiding behind academics and other ‘thinkers', many of whom wish to see copyright downgraded if not destroyed."

So as Gordon Brown steps up to the despatch-box in the House of Commons, the question is: will he listen to the recommendation of a year-long independent review which broke all records for public participation? Or to a group of powerful stakeholders who have nothing to stand on but their own rhetoric? If he opts for the latter, the democratic deficit surrounding the intellectual-property debate will be brought into sharp relief. But if he chooses the former, the real debate might finally begin.

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