First published by Linux User & Developer.

Somewhere in the depths of Whitehall, a team of government employees is closeted away in a darkened room, (I like to think), poring over page after page of analysis of the UK’s intellectual property regime. Commissioned by the Treasury, the Gowers Review of Intellectual Property has received around 500 submissions since it published its Call for Evidence at the end of February this year. The Open Rights Group’s contribution is somewhere in that pile of papers, hopefully not too near the bottom.

Andrew Gowers’ report is due out in the autumn, and preparing it is no small task. The scope of the Review is huge. It covers fair use/fair dealing, orphaned works, licensing of public performances, phonographic recording term extension, patents, licensing and exchange of IP, the influence of new technology, enforcement, legal sanctions for infringement, digital rights management, pharmaceutical IP, trademarks, design rights, and parallel imports/international exhaustion (the importing of goods from one EEA Members State to another for resale, and the restriction of imports to EU Member States of goods sold outside the EEA).

Carrying out an in-depth review of any one of these areas would be a major undertaking. Reviewing all of them at once is a Herculean task made worse by a tight schedule. Even the largest of the music industry groups scrabbled to finish their reports on time: the International Federation of Phonogram and Videogram Producers (IFPI) aimed to get theirs in at a “minute to midnight” on the final day. On the opposing side, small groups like the Foundation for a Free Information Infrastructure (FFII) and the Open Rights Group (ORG) had to devote a large chunk of time and manpower to writing their submissions.

The Gowers Review obviously have more resources to hand than ORG does, but they are putting a lot of pressure on themselves to get this review finished in time. Assuming that ‘Autumn’ means ‘November’, that’s a mere seven months from the deadline for submissions until publication. It provides little time for examining all the evidence, following up with interviews, commissioning independent research, or for drafting and review of the final report.

The Call for Evidence asks for first person accounts and opinions as well as hard evidence. For example, the questions asked regarding phonographic recording term extension were:
(a) What are your views on this issue?
(b) Is there evidence to show the impact that a change in term would have on investment, creativity, and consumer interests?
(c) Are you aware of the impact that different lengths of term have had on investment, creativity, and consumer interests in other countries?
(d) Are there alternative arrangements that could accompany an extension of term (e.g. licence of right for any extended term)?
(e) If term were to be extended, should it be extended retrospectively (for existing works) or solely for new creations?

The request for real-world experience is an effective way to get people to respond, because everyone likes an opportunity to express themselves. But whilst human beings are great at generalising rules from their experiences – for example, the first time you burn your finger in a candle flame you will accurately generalise that all candle flames are hot – generalising rules about how we deal with IP from the first hand experiences of those whose businesses rely on IP will necessarily introduce bias.

Professor James Boyle, at Duke Law School, has written much about this, and vocally criticises what he calls ‘faith-based policy’. He describes normal procedure for writing intellectual property policy thus:

“Representatives of interested industries come to regulators and ask for another heaping slice of monopoly rent in the form of an intellectual property right. They have doom-laden predictions, they have anecdotes, carefully selected to pluck the heartstrings of legislators, they have celebrities who testify – often incoherently, but with palpable charisma – and they have very, very simple economic models.”

I don’t wish to misrepresent the Gowers Review. They have asked for evidence and will undoubtedly get such research as exists, but do we have enough to sensibly review all of our IP policies? As we said in the ORG submission, “relatively little independent research has been pursued in any country”.

Andrew Gowers addressed the Gowers Review Seminar in March, saying, “I believe that this Review will be a unique opportunity to go back to the intellectual roots of intellectual property, but not as an academic exercise. We have an opportunity to rigorously analyse the operations of the UK system; an opportunity to provide practical recommendations that enable consumers and businesses to make the most of intellectual property.”

The Gowers Review team does indeed have an opportunity, but how effectively they will seize it remains to be seen. There is an urgent need for more research; until it is done I fail to see how the Review’s report can be said to be evidence-based. In his report, Andrew Gowers should not just assess our IP framework, but also set up a system of continuous review so that the UK keeps pace with new technologies and gets the kind of forward-thinking IP policy that our writers, musicians, software developers and other innovators need in order to flourish.