Urgent: Defend a Balanced UK Approach to Copyright

Copyright consultations seem to be like buses: you wait for years, then several come at once. In the wake of the Hargreaves report, and the follow-up UK government consultation, we have another one, albeit rather different in emphasis.

It comes from the grand-sounding All Party Parliamentary Intellectual Property Group (APPIG). You might think this is yet another of those rather dull but worthy Parliamentary committees patiently trying to get to the bottom of things in some forgotten room deep inside Westminster. But upon closer inspection, we find the following background:

The Group was launched in 2003 ... to create a resource for parliamentarians of both Houses interested in learning more about intellectual property (IP), its role in stimulating creativity and economic growth, how new services are developing to serve consumer needs, and the harm that can be caused when IP is not properly respected and protected.

Luther Pendragon provides administrative support to the group on behalf of the Alliance Against IP Theft (the Alliance). Established in 1998, the Alliance is a UK-based coalition of trade associations and enforcement bodies with an interest in ensuring the value and of and contribution to the UK economy of intellectual property rights is properly understood and that these rights can be protected and enforced. With a combined turnover of over £250 billion, Alliance members include representatives of the audiovisual, music, video games and business software, and sports industries, branded manufactured goods, publishers, retailers and designers.

Now, you may detect there a certain emphasis on "the harm that can be caused when IP is not properly respected and protected". Moreover, it's worth noting that the "administrative support" is on behalf of the suggestively-named Alliance Against IP Theft, an organisation that seems not to understand this "IP" stuff, since it thinks it can be stolen.

So let's bear that in mind when examining this new inquiry from the group [pdf]:

The All-Party Intellectual Property Group today announced that it is to conduct an inquiry into The Role of Government in Protecting and promoting Intellectual Property.

The Group has decided to look at this important issue because responsibility for development and enforcement of IP policy sits across many Government departments and agencies. There have been numerous reviews into IP policy in the last ten years but the decision-making framework within which policy is developed and agreed has not been sufficiently examined.

The Group will seek to unpick the tangled web of cross-departmental responsibilities in this area by considering how policy has been developed, the effectiveness of the current approach, and whether the machinery of government can be improved for better policy formulation.

What I think that probably means is that APPIG isn't happy with the even-handed and fair approach that the UK Intellectual Property Office (IPO) has taken with recent consultations and proposals, and is looking for reasons to eviscerate it and to give responsibility for copyright et al. to some other state organs that might even believe that IP can somehow be stolen (and in fairies, too, presumably.)

Here's what it's doing:

The Group is asking organisations to submit short written submissions to the following five questions by 30th March 2012. The Group will then organise a series of public question and answer sessions between Easter and Whitsun recess.

Interesting, of course, that its only asking organisations to submit responses. The cynical might think that it doesn't care about what the 60 million people that go to make up the public think about these things. On the other hand, I applaud the fact that it will be organising a series of public question and answer sessions – that's more like it.

Even though I'm not an organisation, I hope my views won't be rejected out of hand simply because of that. As usual, I have added them at the end of this post. Whether you are a mighty organisation or a mere member of the public, I urge you to make your own submissions on this important matter – and slightly sharpish, given the very short deadline.

1. What should the objective of IP policy be?

The first modern copyright act, the 1710 Statute of Anne, declared that its purpose was the "encouragement of learning." Updating the concept of learning to embrace all kinds of creativity, I think this should still be the central role of copyright. That is, it should encourage as many people as possible to add to the creative wealth of the nation.

One implication of this is that it is not about money, but creativity. One of the key changes that has taken place in the last decade is that hundreds of millions of people have stopped being mere consumers and joined the ranks of creators. Think of the 100 million blogs, 6 billion photos on Flickr, hundreds of millions of videos on YouTube, nearly one billion people on Facebook and the trillion Web pages that exist globally. This is an upsurge of creativity the like of which has never been seen before.

Similarly, in the field of software, for example, the rise of open source has led to a new collaborative development approach that is not based on existing hierarchies or the exclusivities of patents. The power of this new mode is evident: the open source Linux operating system powers the Android smartphones that are rapidly providing unprecedented computing power in the palm of the hand for ever-decreasing prices. That, in its turn is democratising access to knowledge and the ability to apply that knowledge in business and general life.

It is therefore vital for modern IP policy to take account of this new landscape, and not seek to shoehorn exciting new possibilities into old structures. This requires real visionaries in the government, people who are able to think about the longer-term implications of policy decisions, and who can avoid closing off future options through short-term approaches based on outdated thinking.

2. How well co-ordinated is the development of IP policy across Government? Is IP policy functioning effectively on a cross departmental basis? What changes to the machinery of government do you believe would deliver better IP policy outcomes?

The development of IP policy across the Government has improved hugely in the last few years. Before there was no real sense of the importance of this area – and of the damage that ill-thought-out legislation could inflict. A case in point is the Digital Economy Act that was pushed through the wash-up without any debate. This has left a blunt and rusty sword of Damocles hanging over the UK's digital industries, unnerving investors and inventors there.

Today, there seems to be a greater awareness that the best regulations are the lightest – ones that do not interfere with the free evolution of fast-moving markets. Attempts to impose inflexible laws based on old ideas will have serious negative consequences.

3. There have been numerous attempts to update the IP framework in the light of changes brought about by the digital environment. How successful have these been and what lessons can be learnt from these for policy developments?

Previous attempts to update the IP framework, such as the Gowers Review, have ended disastrously, because the Government has been unwilling to heed messages it did not want to hear. It seems to have believed that by ignoring the deep underlying problems they would somehow go away. That has clearly not been the case, which is why the Hargreaves Report has said many of the same things as Gowers – because they still need to be said, and acted upon.

The key lesson to be learned is that when there is evidence that policy is not working, or that new policies need to be introduced, ignoring that evidence is not an option. The good news is that the response to the Hargreaves Report has been hugely better, with the Government accepting most of the proposals there. Assuming those are finally implemented, it may be that we have finally moved on from the previous digital dark ages.

4. How effective is the Intellectual Property Office and what should its priorities be?

I think that much of the credit for the new mood in the digital world should be given to the IPO. Its reports have been incredibly thorough, and the way that it has managed the Government's reponse to Hargreaves has been exemplary. I think that it should be given far more scope to build on those past successes so that we do not fall back into the slough of digital despond.

5. UK IP policy sits within European and supranational agreements. How should the UK government co-ordinate its policy at an international level and what should it do to promote IP abroad to encourage economic growth? Do you have examples of good and poor practice in this area?

The UK should strive to lead by example, creating a regime with minimal rules, and maximal freedom in order to allow entrepreneurial creativity to flourish alongside the artistic kind.

As for bad practice in this area, a prime example is the Anti-Counterfeiting Trade Agreement (ACTA). This was drawn up in secret, with no input from the public, who were not even allowed to see it until Wikileaks kindly released a draft version. The resulting treaty is incredibly one-sided in favour of the US copyright industries, and offers few if any benefits for the UK ones.

In particular, the claim that ACTA will help tackle counterfeiting within the EU is manifestly untrue: the European Commission's own figures show that 93% of all counterfeits come from China. Since China is not a signatory to ACTA, it will not need to abide by its terms. ACTA will therefore have no effect on China unless the latter decided to join, and that seems unlikely – there is no benefit in it doing so. As a result, ACTA will impose extra rules and costs on UK business, and lead to the criminalisation of UK citizens, without bringing any corresponding benefits for either.

To avoid this, treaties should be drawn up openly, with input from all parties – including the public – and using the same evidence-based approach to policy making that informs UK laws.

6. Protecting, and enforcement of, the IP framework often sits in very different departments to those that develop IP policy and those that have responsibility for the industries most affected. What impact does this have and how can it be improved?

"IP" as such does not exist: instead, there are various types of intellectual monopolies like copyright, patents and trademarks, each of which has its own quite different characteristics. It is therefore inappropriate to attempt to enforce them in the same way.

The folly of attempting to codify a unitary approach to enforcement is evident once more in ACTA. The terms that apply to combating things like fake medicines that can cause injury or even death are clearly completely inappropriate when discussing digital copyright infringement, which can do neither. That's just one of the many reasons why ACTA should not be ratified.

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