US neocons like to say that the only things found in the middle of the road are "white lines and dead armadillos."
Much the same applies to intellectual property (IP). At first sight, this may seem strange because -- as a former editor of the Financial Times observed -- "it is an obscure and distant domain, its laws shrouded in jargon and technical mystery, its applications relevant only to a specialist audience."
Yet, he continued: "IP is everywhere. Even a coffee jar relies on a range of IP rights, from patents to copyrights, patents to trademarks."
IP has become a vicious battleground in which industries whose business models are threatened by digital technology have used every legal (and sometimes extra-legal) trick to protect their IP rights -- and to secure their business models against any future technological development. On the other side, teenagers have grown up with the idea that the internet is the ultimate "celestial jukebox" in which any music track or movie is available -- free -- on demand, for downloading and, er, "sharing."
In another part of the jungle, IP -- in the form of patent rights -- has become an instrument for commercial intimidation. The way that Research in Motion (RIM), makers of the BlackBerry mobile e-mail system, were taken to the cleaners by a patent owner called NTP is a classic example.
The saga -- a high-tech rerun of Dickens' Jarndyce versus Jarndyce -- highlighted the malevolence of IP in technological areas. After all, NTP makes nothing, delivers no service, makes no contribution to society other than paying taxes. RIM has created a service offering great benefits to consumers. Yet RIM paid NTP US$612.5 million just to avoid a court injunction.
Strangest of all is that, so far, IP lawmaking has been largely an evidence-free area. In virtually every other area of public policy, lawmakers seek evidence from interested parties before legislating and try to assess where the public interest lies. But IP law has traditionally been made simply by conceding the demands of content owners for ever-greater extensions of their rights, leading to absurd durations of copyright protection.
Every time Mickey Mouse is about to run out of copyright, Disney & Co go to Congress and get an extension -- "infinity on the instalment plan," as one wag dubs it. Europe follows suit, and the world marches to the beat of the Disney drum.
Given this background, this month's publication in the UK of the Gowers Report on Intellectual Property is a truly memorable event.
Andrew Gowers -- the former Financial Times editor I quoted earlier -- was commissioned to conduct "an independent review into the UK Intellectual Property Framework," and he has done better than most of us expected. It should be a set text for legislators, and is available online (www.tinyurl.com/yz8l26).
First, Gowers recommends intelligent measures to improve enforcement of the law in relation to IP. Trading standards officers will have to take it more seriously -- and tackle the scandalous abuse of open-air market (often literally out of the boot of a car in a field) sales as venues for wholesale piracy. He wants to reduce the potential for IP-based blackmail by providing cheaper paralegal mechanisms for pursuing IP claims and damages.
Second, he proposes measures to make it easier for businesses to register and exploit IP. The UK Patent Office is to be restructured as the UK Intellectual Property Office. And he wants the government to provide more support for British businesses as they seek to protect their IP worldwide -- especially (though Gowers is too tactful to mention this) against the Chinese, who are world champions at infringement.
Third, Gowers seeks to strengthen the principle that IP rights must be balanced against the public interest. He recommends intelligent extensions of "fair use" provisions to enable consumers to format-shift content they have purchased (by transferring music from CD to MP3 player for example).
He wants libraries and universities to be free to copy content for archival purposes and recommends that the European Commission should not extend the term of copy-right protection for sound recordings and related performers' rights beyond its current 50 years.
This last has raised howls of protest from those who think they and their heirs should benefit indefinitely from royalties. They will doubtless seek to portray the recommendation as the product of spite, when it's the outcome of academic research commissioned by Gowers which concluded there was no objective case for extension.
An example of evidence-based policymaking in action. We need more of it.
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