GUEST BLOGGER: SIMON GENTRY

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.

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