The IPKat is pleased to welcome Simon Gentry as his guest blogger. Simon is an activist with the outspoken and sometimes controversial Campaign for Creativity. He writes:

Has IP become industry’s achilles heel?

The Roman poet Statius (c. A.D. 45-96), tells us that, when Achilles was born, his mother Thetis tried to make him immortal by dipping him in the river Styx. As she immersed him, she held him by one heel and forgot to dip him a second time so that the heel she held could get wet too. The place where she held him therefore remained untouched by the magic water of the Styx and that part stayed mortal and vulnerable.

Over the last decade or so, we have witnessed growing concern about IP and its consequences. Biotech patents, patents on HIV treatments, patents in the software field and attempts by industry to deal with peer-to-peer file sharing are all being criticised by a growing number of groups that are unhappy with the way IP operates. IP is at best misunderstood and at worst seriously maligned. Lobby groups have correctly identified IP as a vulnerability for industry and are increasingly successful in convincing law-makers to restrict or water down IP rights in pursuit of political goals. These groups may have different objectives, but they share a common view on IP: they reject both the idea that there is an essential and fundamental “fairness” in intellectual property rights and that inventors or creators have moral right to protect "their” ideas. Ideas are free, they say, and should not be turned into a private property to be traded and enforced.

How bad is the problem? Do people in Brussels and the EU’s national capitals really believe that IP is inherently unfair? Based on the evidence the answers are: "very" and "yes". The Biotechnology Directive remains unimplemented and last year the European Parliament voted by a two-thirds majority to dramatically restrict the use of patents for computer-implemented inventions. In biotechnology, despite the fact that the EU approved the biotech patents Directive nearly decade ago, 15 EU Member States have not implemented it into national law. In this case the opponents of the technology are opposing an IP measure as a way of removing the
incentive for commercial investment in the science. They have identified
correctly that by preventing or restricting the use of IP in this field, they will stop or delay its progress. The real consequence is not that the research has stopped, but it has shifted out of Europe, mainly to the US. The same may happen on computer-implemented inventions. In the last few months the Campaign has become increasingly involved in this struggle for this Directive. A failure by the EU to approve the Directive on computer-implemented inventions, will not stop the development of new software, but it will reinforce the already dramatic imbalance between Europe and the US. Entrepreneurs and innovative software developers will have virtually no choice in where they choose to do their research and development. On the one hand will be the US with robust protection and consequent possibilities for income, and on the other will be the EU with very limited protection and therefore much more modest income potential.

You don’t need to be an IP lawyer to figure out where they will choose to work and invest. The Campaign not opposed to individuals or companies choosing not to use IP to protect their work. Companies may make an absolutely rational, commercially advantageous decision NOT to patent their work. We have no quarrel with that. We reject completely however, the attempts to prevent the use of IP in certain technologies, such as biotech or IT.

We are struggling to maintain the freedom of the creative industries to choose if and how to they want to protect their work. Our effectiveness however is largely dependent on how much active support we can generate from within the IP community. If the professionals who understand and work with the system can’t or won’t explain it, who will? And if no one is prepared or able to argue in support of IP, how can we expect the politicians and law-makers not to listen to those who lay many of the world’s ills at the system’s feet. As a leading member of the European Parliament said to me a few weeks ago, “If this is so important, why do I never hear from those who support it? I get hundreds of letters from those who oppose IP, but I never hear from those who support it!”. Indeed. The future of the IP system is in the hands of those who use it. If we don’t explain it, if we don’t lobby in support of it, we will lose it.

The Campaign for Creativity exists to explain IP, how it works and why it is essential if we are to have a fair, progressive and innovative economy in which creators are able to protect and exploit their efforts without the fear of their ideas being expropriated by others.

Both Simon and the IPKat would like to hear your views on this guest blog. If you've anything to add to the debate, please post it via the Comments facility below.
GUEST BLOGGER: SIMON GENTRY GUEST BLOGGER: SIMON GENTRY Reviewed by Jeremy and Ilanah on Tuesday, August 24, 2004 Rating: 5


  1. Simon,

    I agree with you that there are lots of lobby groups campaigning against intellectual property rights in Brussels for spurious reasons. I presume your campaign is aimed at neutralising their complaints - good luck.

    I do, however, have a couple of problems with your post. First, an uncritical acceptance that more IPRs equals greater economic prosperity is flawed. Any sensible economic analysis recognises that IPRs entail a trade-off between allocative efficiency and the promotion of innovation. The question is where one draws the line between maintaining incentives and allowing the free flow of ideas and information. That is clearly an issue open to debate by policymakers.

    Secondly, I seriously question whether one can blame inadequate IP laws for Europe's failure to keep up with the US in high tecnology areas like software and biotechnology. A European innovator can, afterall obtain patent protection in the US, whether or not he is protected in Europe. Think also of the situation in relation to databases - Europe has its turbo-charged Database Directive, whereas the US has far less protection - yet the US is streets ahead of Europe in database markets. Strenghtening IPRs is, I would suggest, only a small part of the overall equation. More significant reasons behind the US success include, its superior Universities, its greater effectiveness in commercialising research, and the overall dynamism and entrepreneurialism of its economy. These are matters that, unfortunately, IPRs cannot solve.

    So, I think that in explaining the merits of IPRs more modesty as to their ability to cure Europe's ills, would be welcome.

    John Cahir
    Queen Mary Intellectual Property Research Institute

  2. Following on from John Cahir's comment there are academic and even governmental studies suggesting that more and stronger IPR does *not* necessarily lead to more innovation, particularly in new technologies such as IT. The US Federal Trade Commission (, in its report on patenting last Autumn, and studies at Research on Innovation and Research In Europe indicate that when patents become too 'cheap' (ie easy to obtain relative to research done) they impede innovation by encouraging companies to switch their focus from products and marketing to patent strategies. Patenting becomes a *substitute* for investment and innovation, not a way of protecting it. This is what is happening in software today as a result of allowing software patents.

    Some of Mr Gentry's comments are certainly true. In particular, recently law-makers have been persuaded by lobbyists to water down strong IPR protection. But perhaps that is because the IP-maximalist case simply doesn't stand up to public scrutiny. In the past it has won by default --- IPR policy is generally set by bureaucrats consulting interest groups behind closed doors in a manner that harks back to the corporate state of 1960s and 1970s Britain. These interest groups --- mostly large industry organizations and patent lawyers --- tend to be pro-IPR-inflation. Should anyone be surprised if, when the bright light of open discussion is shined on these proposals, they fail?

    Mr Gentry will have a hard time explaining why the vast majority of software developers are adamantly opposed to software patents. These are the creators --- they don't want the protection because it impedes their work. Bill Gates said so:

    "If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the [software] industry would be at a complete standstill today."
    Microsoft internal memo "Challenges and Strategy", 1991When most defendants in a software patent case choose to settle even when they are likely to win, when there exist companies whose sole business is "licensing" patents on things that everyone was doing anyway, when whole sub-sectors of software developemnt are cut off to any but the largest companies by patent thickets --- is it any wonder that this expansion of IPR is opposed by the creators themselves? Does Mr Gentry really think that playing music on the web is an "invention" which deserves a 20-year monopoly? What about internet shopping? What about downloading data from the internet? All these obvious ideas are patented by litigation-only companies. An invalid patent is a very powerful weapon. Mr Gentry claims not to oppose "individuals or companies choosing not to use IP to protect their work". Does he support or oppose their right not to be threatened by bogus IP?

    And lest we forget, there is already a form of IP protection in IT which serves us well --- copyright. Even open-source liecences are underpinned by copyright, and have been successfully enforced against transgressors. But the dogmatic view that more IPR is always better is simply wrong, and so is the inappriate expansion of IP.

    IPR is not the natural state of things. It is a tool of government, and its application needs to be made accountable to the public interest in the same way as any other government mandate. The question is not why shouldn't we have it, it's why should we?

  3. John Cahir says: "...its superior Universities, its greater effectiveness in commercialising research, and the overall dynamism and entrepreneurialism of its economy". May be being based in Queen Mary University makes US universities appear superior to him. Or he clearly does not know that most of the breakthrough research in IT and Life sciences has happened in European institutions!

    The core factors underpinning US competitiveness in commercialising scientific breakthroughs relate to easy liquidity, flexible labour markets and a culture that allows failures as a rite of passage rather than a loathsome burden or stigma. Of course none of these can be resolved by IP policies, and if Europeans want a larger share of the $$$ pie, they need to leave their homes and try working elsewhere..

    Amused in Cambridge

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