See: The Gowers Review, OUT-LAW Radio, 07/12/2006
Matthew Magee: Can you tell me a bit about how you found the experience of conducting the review because it was a huge project, it lasted a long time and there were very complex issues. It must have been pretty hard.
Andrew Gowers: It was fascinating, a fascinating insight into the issues around intellectual property which of course are multi-faceted and touched so many different economic groups and industry groups. Secondly, it was a great insight into the world of government. You know it was multi-departmental. We were working with the Treasury, with DTI and the Department of Culture Media and Sport and navigating through the corridors of Whitehall was a great learning experience. And I suppose in general, rather satisfying to tackle a big and complex set of issues and hopefully produce some creative arguments around it.
MM: You had some pretty fundamentally competing interests to deal with and try and reconcile. How did you go about doing that? How did you approach that when people were so diametrically opposed?
AG: Well I think a very early insight into that issue was that the realisation that intellectual property is not like physical property contrary to what is sometimes claimed. But it is a conditional system based on establishing a balance. The balance between, on the one hand, incentives to inventors to invent and creators to create and on the other hand, being mindful of the need to preserve as much as possible the free flow of information and of economic competition. So you know aspects of intellectual property are monopolies granted for a purpose and it should be kept in proportion. There is always a risk and I saw this coming in – in some of the sort of heated debates particularly those surrounding copyright though also affecting other areas of intellectual property – of sort of polarisation, a kind of rival fundamentalisms talking past each other and generating more heat than light. And I think that you know we sought to steer a middle course based on the idea that you know we do not believe that everything should be free contrary to what some people say just because it can be free nor do we believe that intellectual property is an unalloyed good. There are – you know there must be limits to it. It must be possible for ideas to flow out into the public domain once patent protection has done its work or once copyright protection ceases.
MM: You were given the task which was a burden I imagine in terms of workload but must have been quite freeing up in terms of scope of just looking at the whole area and saying just review the whole thing – there are no limits. Now when you did publish the report you were criticised by some people as not being radical enough given that you had all of that to play with in your recommendations. Do you think that is a fair criticism?
AG: No I don’t, and I don’t think it is a realistic one either. I mean either in terms of our mandate or in terms of what is feasible. You have to start from the realisation that intellectual property is in fact a global system. It just happens to operate through national jurisdictions. So the idea that dear old Britain would somehow reinvent the rules of the road and in just one country is almost laughable you know. The fact 00is it is an international system operating in many cases through international treaties. In any case if you are an inventor, a creator or industrialist in the UK it is not really very relevant to you what you can strictly just do in the UK. You need to know what the rules are elsewhere and there are great, very strong inter-dependencies so for all those reasons we took a pretty modest view of what we could do in one country and sought to provide practical solutions to practical problems rather than reinventing the wheel.
MM: So where there are some things that you wanted to do but you looked at and said actually this would be great in isolation but it is not possible given the web of international agreements and treaties and what were they?
AG: It would be lovely to wave a magic wand and create a single unified system for patent protection and litigation in Europe but there have been efforts to do that for more than 30 years and they have all failed. It would be great to achieve greater harmonisation at a broader international level as well but as I say you know those are the sort of aspirations that are the big games in terms of patent protection. Equally I think that you know one can make some very interesting arguments about copyright and how much copyright protection is necessary. Our conclusions were roundly criticised by the music industry in particular for actually doing the non revolutionary thing of leaving the status quo in place ie 50 years term protection for sound recordings. I could have made a case for reducing it based on the economic arguments. As it is we left it in place rather than increasing it to 95 years as some of the music industry wanted and again I think we steered a happy middle course rather than siding with one or other of the opposite poles of this debate.
MM: Did you come close to reducing it and what were the arguments in favour of that?
AG: We certainly considered it and if you look at the report that came from the academics that we commissioned to examine the arguments and examine the evidence they also argued very robustly that you know 50 years could be arguably more than enough but you know in the end we took the politically prudent course. To be honest reducing it in any case would be a very big international debate. It would stand very little chance of making headway in Europe but I think there is a pretty strong chance that 50 years – the line can be held at 50 years as the EU considers the issues.
MM: From what you are saying about the international perspective do you think these issues are locked permanently in stasis because if you, with that mandate, can’t make radical changes because of all these international agreements is there anybody able to? Do you think these things will ever change or do you think that web of agreements means that they are effectively prevented from ever changing?
AG: No. I think that what the significance of it lies in a slightly different place which is that for quite a number of years, probably for decades, intellectual property protection has been regarded as, in a way, a one way ratchet. Partly because the people wanting, demanding more intellectual property protection have tended to be larger, better financed, more articulate than the fragmented number of essentially as consumers who pay the price for it. I think what we have done with this report is reassert the balance and make some arguments as to why that ratchet need not go any further and you know that line in the sand is very significant because I think you know the argument that tended to be made largely by those who had their own interests at stake or did not know enough about the subject that more intellectual property rights are good and less intellectual property rights are bad. It is not as unequivocally so as that and I think one needs to take a much more nuanced view. There are other signs by the way that the tide may not be rolling back but it may have stopped rolling in the direction of the one way ratchet and I would point you to what is going on particularly in the realm of a disenchantment with the – you know with the ever extending reach of patent protection in the United States and the opening of new categories. It is by no means seen as an unalloyed good in the US anymore that business matters can be patented. A lot of people are concluding that that has introduced more legal complexity and greater impediments to the free flow of ideas.
MM: How will that be rolled back or be stopped that ever encroaching series of rights? As you say industry is very eloquent and very well funded arguing on the one hand. Who will argue on the other side?
AG: Well I think that the voice of consumers has been heard to a greater extent. I think that there is a recognition that laws that have become outdated or excessively inflexible in the light of the rapid pace of economic change, globalisation, digitisation need to be amended and that applies as much in the field of patents for scientific research exceptions, needing clarification on the one hand but also in the world of copyright where frankly quite a few things that are common practice are treated on the statute book as illegal and that cannot be – in the UK that is – and that cannot be a good law.
MM: What do you think the chances are of private copying exemption reform? Because that must be one of the things you mean by that.
AG: Yes well I think that you know it is one of the many things that the government accepted as necessary. It is something that will have to be dealt with by legislative change and will need to be agreed in Brussels. But I think you know, subject to the delays that that implies, I think the chances are very good because I think the arguments are good and I think also if you talk to people in Brussels you will tend to find them not very happy with the current set up.
MM: The argument you made in the report was a relatively new one on the vexed issue of levies on blank media to compensate for private copying where you said you know record companies after this law is passed, if it is passed, can put a few quid or a few pence on CD prices to compensate. Realistically when you look at incredibly competitive CD markets do you think that will happen or do you think artists and record companies will just have to accept that they are losing out?
AG: We just had no appetite for imposing levies for example on hardware. I mean that seems to be a – that is the sort of yesterday's answer.
MM: But I mean do you think record companies will be brave enough to stick a few pence on CD's?
AG: That is a matter for them. I mean I think that you know it is all a question of relativities. I mean there is already as you say price competition in that market. They will have to find their way in that framework. I mean we won't – let’s be clear – we weren’t proposing that record companies raise prices in order to compensate for this. We were just saying that we can’t see any justification for a sort of officially imposed levy.
MM: You were keen to see an exception for copyright infringement in relation to parodies. Was this in relation to any particular case or matter? Was there one event which kind of sparked this off that you thought actually you know copyright should not be allowed to be used to I suppose suppress parodies or free speech?
AG: It was in response to some representations made to us and that called for evidence and in particular the BBC was quite keen on this and you know we thought that it was a good thing to add, rather in the spirit of the US concept of fair use which cannot be translated wholesale into UK law but parts of it can in a tightly drawn way be imported. That is the idea that you know. And as a broader signal that you know copyright is not a sort of – it is not physical property.
MM: This is something we are increasingly seeing in the US isn’t it where copyright and intellectual property laws are used for other means when companies don’t like what people are saying about them, they use copyright law to stop people saying it don't they?
AG: Yes and I think that is a worrying trend affecting journalists which sometimes I debate with journalists' organisations who say you know you have not gone far enough in protecting us and say well this can be used against journalists. For example confidential documents that form the heart of a story sometimes are used in this way and it is actually worrying for the freedom of expression.
MM: Was there any government pressure or influence put on you directly or indirectly on any of the issues involved here? Because this is something that is very important to government.
AG: Absolutely not I am pleased to report. I think you know part of the reason for that is that this was an independent review and although it worked with government resources and within government departments you know I felt I was given an explicit mandate to form my own view. Partly I think it is that government was genuinely open-minded and curious about this area revealing that one of the reasons the report was called into being was that government did not really have a compass for navigating on IP. They were aware it was very important and had become more important. They were less sure of their understanding of the underlying issues so they wanted as an analytical framework in which to deal with new things coming forward.
MM: You made an interesting argument on transformative and derivatives works calling for them to be made legal. That is obviously a very difficult thing to judge. How would you decide and who would decide whether a work was transformative, derivative or just a copy of something that has gone before?
AG: That detail is to be worked on. But that it is possible is not in doubt because it exists in the United States.
MM: And yet, the example you took of Hip Hop of how people were more free to use and borrow music in the 80's than they are in the 90's or now. It is still quite restrictive there so that - I mean is that really the model that you like?
AG: I mean I do not want to be completely prescriptive about the model. I would just make the broader point that innovation almost never takes place in a vacuum. It is always a creation on the back of another creation and we should not lose sight of that or become over precious about the act of creation itself you know. The whole thing from Isaac Newton about standing on the shoulders of giants – we want to facilitate continuous innovation and innovation on the back of other's innovations which is not outright blank theft.
MM: And do you think this has a big impact not only economically and in the business and industrial worlds but culturally? That people do not feel able to borrow other people's work?
AG: No I wouldn’t be able to put a quantity on it. I think it is - you know – this is not an economically huge issue but I think it is part of a series of measures that we proposed that add up to a making of copyright law more flexible and in tune with modern custom and practice.
MM: Obviously the digital rights management is a huge part of life in the music industry now and the movie industry as well. You said you want a DRM notice on everything sold with it. Do you think that will happen and why did you recommend that?
AG: I think its part of – let me deal with the why we recommended it first. I think it is part of a desire for increased transparency about what customers are buying, consumers are buying and they buy it. And let’s be clear. There is a residual, I believe, a residual distaste or discomfort among consumers about the fact that they feel that they have been made to buy the same products at least twice. And I am referring of course to the junking of the vinyl record collection and its replacement by CD's. That was a huge bonanza for the music industry and effectively a lot of people ended up buying the same recordings twice. They do not want to be caught like that again and so you know when they are buying things in digital formats I think within the confines of their own private circle they have a legitimate expectation that they should be able to make their own private copies which is why we proposed a private copying exception. The worry about DRM is that that can be used. I am not saying it is always used but DRM in fact the irony can be a very good thing. It can help companies track their property and so forth and so on but were it to be used in such a way as to rob consumers of what they thought were their rights, that would be a bad thing so I think what we would say is if government is going to put DRM into a device which can be a good thing based on the law and not taking it beyond the law then they should tell consumers that it is there.
MM: There has been a big shift and I suppose the review that you were commissioned to do is part of it. There has been a big shift, hasn’t there, in the past seven or eight years where intellectual property used to be a little niche of business and nobody really knew what it was. It is now culturally and socially essential to our lives isn’t it?
AG: Yes. Yes. I absolutely think so and I think that you know some countries including their public opinion have been faster to realise that than we have. My team travelled to Asia for example to Singapore and to Japan and found a much higher awareness of – even at the level of the sort of well informed public – of the importance of intellectual property and its salience to economic productivity than we have in this country and I think that is a shame on us. So there are lots to be done there. But to look on the positive side of things the fact that the government commissioned this review, gave it a pretty broad mandate and accepted its conclusions is a sign that they realise, and that the Chancellor in particular realises, that this is central to the productivity agenda.
MM: Some of the recommendations have already been implemented. That must make you pretty happy.
AG: Yes there is a team in Whitehall or rather there is a steering group chaired by the Treasury in Whitehall and there is a team of people based in the patent office whose job it is to make this happen. There is a plan for the short term, for the medium term and for the longer term and in the short term all the changes that we have proposed that do not require legislation can be brought into effect this year. The ones that require legislation might have to wait until 08.
MM: But they did not accept them all did they? I mean it is just kind of the few that they have chosen from your recommendations. Or did they accept all?
AG: They accepted our report in – the Chancellor on the level of government accepted our report in full.
MM: So does that mean they are going to implement all of the recommendations?
AG: Yes. There were a couple of areas where it is going to require work in Europe and on the question of the copyright on the sound recordings the Chancellor referred the issue to Brussels where it is in any case under consideration. But I think we have made our arguments very clear and I think they have been read with interest in Brussels.
MM: It was a huge undertaking. Have you planned some more? Would you do one again?
AG: Well I tell you what the – what happened half way through the review was that I actually took on a day job at Lehman Brothers and that is where I am now and to be honest that has probably got to take up more of my time than would permit me to engage in another exercise of this kind. Because you know at least in the first half of the exercise this took up quite a lot of time because there were the hundreds of submissions we received to comb through. There were the numerous meetings with stakeholder groups and so forth to go through. I wouldn’t have time for another one of those as long as I have my day job.
MM: I suppose hearing lots of submissions, lots of stories and trying to guide a path through them – in some ways it was a bit like journalism. Was the journalism training helpful?
AG: Well I do not know why I was chosen to do it but I suspect that the fact that I was a layman and not a member of any of the intellectual policy priesthoods or party and that I had spent 25 years as a journalist the art of which as you know is to try and take complex issues and make them explicable, you know I think that is probably one of the reasons why I was asked to do it and I certainly felt like that part of my brain was being used.
See: The Gowers Review, OUT-LAW Radio, 07/12/2006