[A2k] Observer: Road map to peace in the intellectual property war

[Thiru Balasubramaniam]

http://observer.guardian.co.uk/business/story/0,,1968312,00.html

The networker

Road map to peace in the intellectual property war


John Naughton
Sunday December 10, 2006
The Observer

American 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 observes -
'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 continues: '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 email system, were
taken to the cleaners by a patent owner called NTP is a classic
example. The saga - a hi-tech rerun of Dickens's Jarndyce v 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 $612.5m just to avoid a
court injunction.

Strangest of all is that, so far, IP lawmaking has been 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 the
absurd duration 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, Tuesday's publication of the Gowers Report on
Intellectual Property is a truly memorable event. Andrew Gowers - the
former FT editor I quoted earlier - was asked by Gordon Brown to
conduct 'an independent review into the UK Intellectual Property
Framework', and he has done better than most of us expected. It's
available online (Tinyurl.com/yz8l26) and should be a set text for
legislators.

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 car-boot 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 Patent Office is to be restructured as the
UK Intellectual Property Office. And he wants the government to provide
more support for UK 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 (eg, by transferring music from CD to MP3
player). 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 copyright 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.

john.naughton@observer.co.uk

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Thiru Balasubramaniam
Geneva Representative
CPTech
voice +41.22.791.6727
fax +41.22.723.2988
mobile +41 76 508 0997
thiru@cptech.org