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Friday, 3 September 2004

IP IN EUROPE: A FINAL RIPOSTE?

The story so far:

* On 24 August Simon Gentry (Campaign for Creativity) posted a guest blog in which he emphasised the importance of IP rights in Europe today.

* Simon's blog drew vigorous criticism in comments posted by John Cahir and Alex Macfie.

* On 28 August IAM editor Joff Wild responded to John's criticisms, pressing strongly for Europe to adopt a far more pro-IP position if it were to stand a chance of competing realistically with the IP-positive regime of the United States.

* John Cahir delivered a fierce defence of his position in the face of Joff's attack.Today we post Joff's response in full.

Joff says as follows:

Basically, I think we agree on what we have been debating. If we move forwards, however, what I believe needs to be addressed is how to change the situation in which Europe finds itself. It is too easy for the IP fraternity to blame the Commission and politicians in general for the mess that we have on our hands in areas such as the Community patent, the appointment of the president of the EPO and the technology transfer block exemption. When it comes down to it, I believe that IP owners here have to take the lion's share of the responsibility if Europe lags behind the US in creating a world class IP infrastructure. This is because they have failed to make the case for intellectual property. They have failed to demonstrate the link between IP and economic prosperity and they have failed to counter the arguments of those who have an anti-IP agenda. Politicians tend to listen to those who make the biggest noise. That's why Prime Ministers and Presidents discuss European farming and fishing issues, while junior trade ministers and patent and trade mark officers handle IP. Is it any coincidence that the big international IP issue for Europe at the moment seems to be, as you say, more protection for labels of origin?

Until European IP owners decide that they have to invest time and resource into pushing their case - something that their equivalents in the US have been doing for many years (Bayh Dole, for example, got through Congress in the face of huge, high-level opposition and thanks in large part to protracted, time intensive lobbying from university technology officers) - I think it is inconceivable that there will be any meaningful progress towards creating the IP infrastructure we so clearly lack on this side of the Atlantic. Politicians, the media and the public need education. They need a clear understanding of exactly what the issues are and what is at stake, and they need it all in language that is easy to understand. If this does not happen, I think that there is a major risk that exisiting rights will start to roll back as the stage will be open to those who have an anti-IP agenda to make hay. They are being successful already because they have managed to equate IP with big (American) multi-nationals, the type of business that instantly causes many in Europe to recoil with horror. Of course, we know that is ridiculous and that thousands of European SMEs depend on IP for their survival. But who is making that case? This is where I think Simon Gentry has a point and that is why, despite sometimes not necessarily being right in the details, what he is doing deserves publicity. If he got some more support and help, it might allow him to develop more coherent arguments that can stand up to real scrutiny.

Europe is crying out for its own AIPLA or IPO. It needs industry to get much more involved in organisations such as the LES. The current state of affairs suits many - private practice lawyers and attorneys, patent and trade mark office people and, dare I say it, academics - but it is not helping IP owners one little bit.

The IPKat really appreciates the time that Simon, John, Joff and Alex have spent debating this issue. Thanks, all of you.

43 comments:

Alex Macfie said...

It's fair to say that Simon Gentry and Joff
Wild represent one end of the spectrum and I'm on the other, with John Cahir being somewhere in the middle. But even I am not "anti-IPR" and there are very few people who really are. I am strongly in favour of copyright protection for software, music, film, books. Even the supposed "anti-IP" people rely on copyright --- open-source software licences are based on it and have been successfully upheld in infringement cases.

IPKat noted that the main reason for the success of the US economy might be its relative economic freedom and lack of bureaucracy. In that case, its intellectual property system is an exception --- it is perhaps the most interventionist in the world. The amount of state bureaucracy and regulation required to sustain "intellectual property" is much greater than that required for physical proprety. The fact that intellectual resources are naturally non-rivalrous and that the bounds of someone's intellectual property rights are difficult to define (either you're trespassing on my land or you're not, but it may take a court case to decide whether you're 'trespassing' on my intellectual 'land' even when there's no dispute as to what part of intellectual space you're occupying) contribute to this, and would make a simple "property rights" regime unworkable. Intellectual property is, by this argument, state interference in the free market. Any IPR-evangelist who dismisses this as sophistry should be aware that it was the position of Hayek, and is that of many other economically liberal economists such as Milton Friedman. In practice, patents in particular seem to be, rather than encouraging innovation, in some fields simply creating artificial monopolies. The UK Dept for Education & Skills knows about this: its partially successful challenge to the Frontline Technology wireless patent was motivated by the view that the patent stood in the way of choice and value for money in wireless technology for schools. Government departments are frequently accused of wasting public money, and often with good reason, so I don't see why one should knock an action by a government department which is very likely to *save* taxpayers money. The outcome of the action means that UK schools probably don't have to fear litigation for setting up and running a wireless network on standard equipment --- which was the main concern of the DfES.

My opposition to excessive IPR protection is therefore based partly on free-market principles. And so, like with any regulation, I want to be sure that it would be helpful in promoting a well-functioning free market. Therefore my position on IPR is simple: I favour the minimum necessary to promote further innovation and creativity.

Joff Wild is right when he notes that "Politicians tend to listen to those who make the biggest noise" but as far as IPR goes this cuts both ways. For example, if the European Parliament had had its way, we might not be able to discuss the issue this way at all. In 1999, MEPs, fiercely lobbied by the entertainment industry, voted to treat web-caching as copyright infringement: even temporary or incidental copying was being protrayed as a serious threat to the rights of songwriters and performers. But this would have made standard web-browsers illegal. The web, if it could still exist at all, would be much slower and/or more expensive than it is now. The web-caching ban was reversed only at the eleventh hour. Politicians and civil servants alike had to have it explained to them like they were 6-year-olds that this "protection" demanded by the entertainment industry was unworkable and counter-productive.

Did MEPs connect web-caching with copying? Did they realize they were voting to ban the world wide web? I don't think so. Equally, when they were voting for legal protection for DRM, did they realize that they were voting, in effect, for a legal measure which would most likely trump 'fair dealing' in copyright? Did they understand that region-locks on DVDs, which have nothing to do with protecting copyright, would be protected by this law? Again, I don't think so. The anticircumvention law included some voluntary exemptions which might allow some fair dealing rights to be retained. But mandating strict regulation while merely permitting limitations is not a fair compromise considering that in many countries, notably the UK, the requirements tend to be fast-tracked into national law while non-requirements have to be fought for (a second time).

Wild complains that 1/3 of MEPs opposed the "watered down" IPR Enforcement Directive earlier this year. Considering that it was rushed through the European Parliament with little chance for debate the fact that it had that much opposition is probably quite significant. But his side of the argument won; now he is moaning because he considers it so uncontroversial that it should have got near-unanimous support from legislators. Yet there were many issues which MEPs did not get the chance to consider because the measure was rushed. It seems to me that its supporters wanted to avoid real debate, since if software patents could not stand the bright light of plenary legislative scutiny this certainly could not have done. Even some business and industry organizations expressed concern that it was too broad and biased in favour of rightsholders.

Was it watered down? Hardly, the Foundation for Information Policy Research (which tends to oppose IPR inflation) considered the final version to be a "slight improvement". Some seriously problematic meaures (eg criminal sanctions, further protection for TPMs) were removed, but other provisions were expanded, so that Anton Pillar orders could be made on the flimsiest of suspicions of IP infringement --- similar to if I were allowed to order a dawn raid on my neighbour because I suspected he'd stolen my $10 watch that I'd lost last week. The directive potentially hands over the 'nuclear weapons' of IP enforcement basically to anyone
who asks for them. This greatly expands the scope for frivolous legal actions. It's no good saying that those with no case in law will not win in court: this assumes that most victims of frivolous action have the resources to go to court. There is a great fallacy among IP-legalists, who assume that going to court to get one's rights back is a trivial option. The reality is that it's too expensive for most people to contemplate, so whoever has the most resources --- normally the rightsholder --- wins by default. It is rare for an entity to have both the resources *and* the incentive to overturn bad IP --- one example is the DfES in their action against Frontline Tech mentioned above.

Joff complains that the current EU situation " it is not helping IP owners one little bit" --- but IPRs do not exist solely for the benefit of owners of IP. They exist for the benefit of society. For sure, society loses when people can't market their unique products for fear of being instantly copied. But society also benefits from fundamental and well-known ideas being freely available, as well as from monopoly ending once a good idea has been adequately rewarded. Society certainly does not benefit from obvious ideas being locked-up as private monopolies. I mentioned in a previous post Acacia's patent on media streaming and the various patents on e-shopping, to which I could also add the Eolas patent on running programs from a web browser (does Joff realize that the "anti-IP" group vehemently and openly supports the big American multinational in this dispute?) and British Technology Group's patent on software updates. I note these because they are the subject of current litigation.
No doubt Simon and Joff would assert that the patent-holders are just choosing to commercialize their invention by licensing it instead of using it for their own systems. I can draw no such inference. I see simply a class of opportunists playing the patent system more-or-less like a lottery by patenting obvious ideas fully expecting them to become widely used in the near future. The IPR movement would do well to stop pretending otherwise. If the IP system falls into disrepute, it will be partly the fault of the fundamentalists for not recognizing where the system does more harm than good.

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