Intellectual property (“IP”) law and policy are at the center of contemporary domestic and international trade and political negotiations. There is a wide spectrum of views.
Much of it is uninformed, myopic, and biased and rarely reflective of the complex ingredients at play, including economics, statistics, history, ethics and technology.
This complexity calls for structured decision making. Because statistics can aid rational discussion, this article sets out what organisations in the UK think should be the direction for IP “reform”. It considers discussion of the Gower Review of Intellectual Property.
Quotes around the word “reform” are needed because politicians understandably use the word “reform” to talk up changes as being improvements. When the word “reform” comes after the word “legal” nowadays we are certainly talking about legal changes, not necessarily improvements. The effect of the changes advances the interests of some group or other and sometimes the public interest. It was ever thus.
The UK Gower Review of Intellectual Property, released in December 2006:
- Is a UK government-requested 146 page intellectual property report.
- Received some 500 responses in 2006 to its call for evidence, 264 of them from organisations.
- Has 54 recommendations for changes to UK patent, copyright, design and trade marks law.
- Is further considered, with a focus on audio industry concerns, in Learn to love P2P filesharing.
A Statistical Analysis of the Gowers Review is a 15 page analysis produced in 2007 by Simon Moore and researchers of the Stockholm Network, a network for over 115 European think tanks. Its Executive Summary misses most of the valuable gems in the analysis in the Gower Review of Intellectual Property.
The body of the Stockholm Network analysis considers the 264 organisational submissions to the Gowers Review. According to its analysis only 6.7% of these provided significant statistical data.
It is interesting to consider which industry sectors made submissions, the type of organisations they came from and the topics that were of concern.
1. What industry sectors made submissions?
The analysis provides the following list of industry sectors from which submissions were received, the number of submissions and in brackets the number of submissions as a percentage of the total of 264 submissions from organisations.
- Audio 79 (30%)
- Patenting industries 45 (17%)
- Writing 32 (12%)
- Video 31 (12%)
- Software 29 (11%)
- Design/’Goods’ 24 (9%)
- Static Images 22 (8%)
- Broadcast 16 (6%)
- Data 15 (6%)
- Streaming 5 (2%)
COMMENT: Note that audio is at the top of list, not surprising. The accompanying graphic from page 51 of the Gowers Review illustrates the distribution of revenue from downloaded music files. The statistics on which the pie graph is based were produced by PriceWaterhouseCoopers for the Gowers Review. They indicate that:
- record companies earn the biggest slice, at 68%, followed by
- digital service providers [eg in Australia – Destra, iTunes and Australian Music Online at 15%,
- credit card companies (Visa, Mastercard etc and related financial institutions) at 9%, and
- creators (eg composers, musicians, bands, performers) at 8%.
A further development in the 19 July 2007 downloading decision of The Copyright Tribunal in the UK.
2. What type of organisations made submissions?
The analysis considered the submissions by organisations. Following is its listing of the type of organisations from which submissions were received, the number of submissions and in brackets the number of submissions as a percentage of the total of 264 submissions from organisations.
- Industry and trade bodies 107 (40.4%)
- SMEs 52 (19.6%)
- Universities 27 (10.2%)
- Corporations 23 (8.7%)
- Government bodies 9 (3.4%)
- Charities 9 (3.4%)
- Societies 6 (2.2%)
- Think tanks 4 (1.5%)
- Trade unions 4 (1.5%)
- Academic bodies 3 (1.1%)
- Other 20 (7.5%)
COMMENT: Note that “industry and trade bodies” is at the top of the list. Too often we think of IP as being for the entertainment, information or IT industries. In fact the vast majority of users are from other sectors. They include companies like Johnson & Johnson, maker of the above famous brands. Each is subject to:
- common law or registered trade mark law for the brand names and logos,
- copyright law in graphic design and logo design,
- patent law in any inventive or innovative elements (eg in pharmaceutical formulations or bottle cap design), and
- reputational legal claims which can be asserted under trade practices laws, variations of which are recognised in numerous jurisdictions worldwide.
3. What topics were covered in the submissions?
Following is a list of topics in submissions to the Gowers Review, the number of submissions referring to the topic, and in brackets the number of submissions as a percentage of all submissions:
- Fair dealing/’exceptions’ 107 (40%)
- Application processes 89 (33%)
- [Digital rights management] DRM 85 (32%)
- Legal sanctions 84 (31%)Term length 70 (26%)
- Orphan works 57 (21%)
- The economic importance of intellectual property 46 (17%)
- Co-ordination between different IP regimes 38 (14%)
- The innovative step requirement for patent applications 34 (13%)
- The relationship between IP and competition policy 30 (11%)
- Parallel trade 27 (10%)
- Research and development 27 (10%)
- Consumer protection 20 (7.5%)
- Open source/‘open access’/’creative commons’ 17 (6.4%)
- Associations between IP infringement and other criminal activity 16 (6%)
- Royalties 10 (3.7%)
- Technology transfer 8 (3%)
- Data protection 7 (2.6%)
- The ‘ethics’ of IP 5 (1.9%)
COMMENT: Note “ethics” is at the bottom of the above list. As regards ethics or the philosophy of IP, the Stockholm Network’s analysis indicates that the vastly dominant view evident in the 500 odd submissions is that some form of intellectual property system is needed. The analysis found that only six submissions could be categorised as anti-IP, five of these concentrating on digital rights management and open source software. Fair dealing (comparable to “fair use” in the United States) and exceptions to intellectual property rights were the most discussed topics.
Because revolutions start from the bottom, a few of our posts in coming weeks will consider bottom, oppositional or contrarian views on intellectual property from Creative Commons and open source software perspectives. As the very useful Stockholm Institute statistical analysis has shown, we live in interesting times.