The Future of UK Copyright

As you may have noticed, the topic of "IP" - "intellectual property" - seems increasingly to the fore these days. Actually, that's not really a new trend: as this helpful ngram shows, there has been a really rapid uptake of the term since the 1980s. But promoting the supposed virtues and use of "IP" ever-more widely has turned into something of a bandwagon for politicians who want to be seen to be doing something, and for those who want to assert their intellectual monopolies more strongly.

On the patent front, there is a simplistic assumption that more of them being filed and granted means more innovation, so by increasing the number of patents, innovation, too, will magically be boosted and everyone will be better-off (the EU is the latest to espouse this Innovation for Idiots approach.)

But it's not just patents where maximalists are pushing the "more is better" line. The term of copyright, too, has been extended again and again over the last few decades, even though there is no evidence that this massive withholding of content from the immediate public domain does anything to inspire greater production of new material (which is what copyright is supposed to encourage.)

Happily, though, there is at least recognition that copyright law – whose roots go back to the Statute of Anne from 1710 – needs to be updated to take account of the huge changes wrought by the Internet. The UK' s "Independent Review of Intellectual Property and Growth" won't be examining all aspects of copyright in the digital age, but will necessarily be addressing some, as the following makes clear:

In November the Prime Minister David Cameron announced an independent review of how the Intellectual Property framework supports growth and innovation.

Chaired by Professor Ian Hargreaves and assisted by a panel of experts, the review will report in April 2011. It aims to identify barriers to growth within the IP framework, which consists of the rules and regulations covering how IP is created, used and protected in this country.

The IP Review team has published a call for evidence that seeks information on how well the current IP system serves to help promote entrepreneurialism, economic growth, social and commercial innovation.

Clearly, the main opportunity for "entrepreneurialism, economic growth, social and commercial innovation" lies online and with digital formats, and so the review will be grappling with many of the key issues of how traditional, analogue copyright should operate in a digital world.

One hopeful sign of cluefulness is that the IP Review site is embracing several "modern" technologies like blogging and Twitter. Another is the presence of people like Tom Loosemore and James Boyle on the IP Review Panel of Experts.

As part of the information-gathering process there have been various meetings with "interested parties", one of which I attended last week. Since this was conducted under the Chatham House Rule, I can't say exactly who was there, or who said what, but here is a good summary from the person leading the review, Ian Hargreaves, writing on the Review's blog:

The pace of dialogue around the review has really picked up in the last week or so, with a run of small meetings which have enabled me to hear and question the views of many interested parties. Most of these meetings are, as you would expect, organised by business sector, but it's also interesting to set these tightly focused discussions in a wider context.

One such opportunity arose a couple of days ago when the review was a guest at a discussion held at the Institute for Public Policy Research. IPPR came to me before Christmas with the idea of mounting their own debate, based upon their own network. I agreed to attend, along with members of the review team and three members of the Advisory Panel.

At two and a half hours, the event required stamina, but it never lost momentum. Nick Pearce, IPPR Director, steered the conversation expertly through three over-arching themes: business models; copyright and enforcement. We had around the table senior figures from the copyright intensive content industries, as well as entrepreneurs from high tech start-ups, research scientists, bloggers and academics. Google and Pearson were the sponsors.

Hargreaves singles out one particular area that dominated the discussions:

The theme on which almost everyone has something slightly different to say is this: surely, people say, we must be able to use digital data systems and digital engagement to design an IP system which makes registration of IP, licensing of IP and a market in IP more efficient. Almost everyone is ready to admit that today's system is too slow (at least for parts of the market), too costly and too little understood. Most people also think there are good reforming ideas from previous reviews which have been, unaccountably, lost in the wash.

I agree that the issue of making licensing easier was a major concern of many of the participants. Rather wisely, perhaps, the chair kept the prickly topic of "enforcement" until the end. When somebody suggested that enforcement was just about protecting "IP" like any other property, somebody else jumped in quickly and pointed out that it wasn't like other property, but was in fact an intellectual monopoly (well, actually, that was me – no surprise there.)

At one point the discussion turned to databases, and whether we needed companies and laws to exploit data that could be made available freely. Someone pointed out – OK, it was me again – that this was one of the few areas where we have firm evidence as to whether increasing copyright protection really did act as an incentive for the increased production of content.

Here's what some EU-funded research [.pdf] found about the effect of creating the new "sui generis right" for the creators of databases that do not qualify for copyright:

Introduced to stimulate the growth of databases in Europe, the new instrument has had no proven impact on the production of databases. According to the Gale Directory of Databases, the number of EU-based database "entries" was 3095 in 2004 as compared to 3092 in 1998 when the first Member States had implemented the "sui generis" protection into national laws. More significantly, the number of database "entries" dropped just as most of the EU-15 Member States had implemented the Directive into national laws in 2001. In 2001, there were 4085 EU-based "entries" while in 2004 there were only 3095.

That is, far from stimulating their creation, the number of databases produced in Europe actually dropped after the introduction of greater protection. The global picture is just as bad, as the report found:

Between 2002 and 2004, the European share [of global database production] decreased from 33% to 24% while the US share increased from 62% to 72%. The ratio of European/US database production, which was nearly 1:2 in 1996, has become 1:3 in 2004.

Unlike the EU, the US still has no special protection for databases, and yet is gaining market share over the EU. That suggests the change to copyright law in the EU was at best unnecessary, and at worst positively harmful in terms of encouraging European innovation in this area.

However, hard data like this on the effects of copyright change is the exception. One of the big problems with the copyright debate is that there is very little rigorous research on the subject – something that Hargreaves is keenly aware of:

Since agreeing to undertake this review I have encountered two main blocks of reaction. The first is a somewhat frustrated response that here is yet another review of a subject already reviewed to death, raising the pertinent question: why another? The second is that here is a subject of considerable economic importance where we have not yet succeeded in grounding policy securely in evidence. I agreed to lead the review because I hold the second view, not the first.

That is why this Call for Evidence is of such importance. I hope to hear from the widest possible range of interests. I also urge respondents to focus upon the question at the heart of this review rather than the catch-all remit of some previous reviews, namely: what, if anything, should we do to change the UK's IP system in the interests of promoting more rapid innovation and economic growth? It is through that lens that I will be assessing all responses. The most persuasive arguments will be those supported by the most robust evidence. That evidence might come in the form of statistics or in case studies based upon direct, personal and organisational experience.

This, for me, is the central point to bear in mind when making submissions to this important review. Provide hard evidence and I think Professor Hargreaves will listen, as he did during the meeting I attended last week. That's certainly what I aim to do when I pen my response; as usual, I'll post it here for people's delectation or otherwise.

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