First published by Linux User & Developer.

December was a fun month. Who can resist watching ageing pop stars whipping themselves into an apoplectic froth over Andrew Gowers refusal to extend the term of copyright protection on sound recordings? Of course, if you believed everything that the now incandescent British music industry said, you’d believe that:

a) the Gowers Review was a one page letter to Gordon Brown, sent by someone with no understanding of copyright, covering nothing more than term extension
b) suggesting that 50 years is enough is a cruel and heartless act akin to kicking puppies and drowning kittens

However delighted I was to see Andrew Gowers act sensibly on term extension, the Gowers Review actually covers a lot more ground than that. At 141 pages, it’s a pretty hefty bit of bedtime reading which addresses (almost) the full range of intellectual property issues.

So what happens next? We can put term extension aside: the music industry is going to continue trying to bully politicians into submission, and are going to continue debunking their specious arguments whenever possible. But what of the other 53 recommendations?

The short answer is: it’s complicated. Some recommendations will be dealt with at a national level. A quick glance through the review sees reforms required to the Patents Act 1977 and the Copyright, Designs and Patents Act 1988, and actions to be taken by the UK Patent Office, the Department of Trade and Industry, Business Link, the Office of Fair Trading, the Competition Commission, the Regional Development Agencies, the Department of Constitutional Affairs, the police, Trading Standards, and the Judicial Studies Board at least.

At an international level, the Review suggests lobbying the European Commission, as well as co-operation with patent offices in the US, Europe, Japan and Africa. It also recommends that the World Trade Organization review TRIPS (Agreement on Trade Related Aspects of Intellectual Property Rights), and the government lobby WTO members to ratify TRIPS amendments.

The Gowers Review of Intellectual Property itself was no small piece of work, but its recommendations open multiple cans of worms which require engagement by people from many different departments, organisations and countries. It’s going to be a big job not just to implement these recommendations, but also for those of us outside of government trying to keep an eye on what is happening.

But it’s important that this review doesn’t end up fragmenting, with each bit disappearing into its own individual bureaucratic hell, for two reasons: Firstly, it makes some superb suggestions; secondly, it makes some very worrying suggestions.

First, the good.

Recommendations 3 and 4 preserve the term of copyright on sound recordings at 50 years and advise policy makers that there should be no retrospective alterations to the term or scope of protection for intellectual property.

Recommendations 8 to 12 will give libraries the right to copy and format shift; let the public format shift and copy privately; and create fair dealing exceptions covering “creative, transformative or derivative works” and “caricature, parody or pastiche”. The transformation exception is crucial: it has the potential to open the door to a wealth of creative possibilities.

Orphaned works are covered by recommendations 13, 14a and 14b, but there’s a lot of debate still to be had about how exactly we deal with them – we must ensure that any new framework encourages people to use orphaned works, rather than simply make it easier for previously uninterested rights holders to crawl out of the woodwork only when derivatives of their work are successful in their own right.

Now the not so good.

The enforcement section, particularly recommendations 36, 38, 39, 41 and 42. Professional, large-scale counterfeiting and piracy is a significant problem which needs to be addressed, but Gowers doesn’t draw a distinction between professional large-scale infringement and the kind of behaviour that makes many iPod owners criminals under current law. Equalising penalties for offline and online infringement is very worrying in this context.

Indeed, this is the one part of the review which did not question the claims made by the music industry, e.g. that file-sharing damages sales. What would Gowers have suggested if it was found that file-sharing had no impact, or improved sales? (Independent studies support this.)

It’s essential that any new legislation, codes of practice, or policies are based on real evidence and target professional criminals without criminalising non-infringing acts or punishing economically insignificant (or even beneficial) behaviour. Technology changes rapidly, but law doesn’t. We must be careful not to stifle innovation by poor legislation based on assumption and fear.

Overall the Gowers Review is a good piece of work, and I’m pleased that they have taken a stance more in line with ORG’s principles than the BPI’s. Let’s hope the Government take notice.