The story behind the Gowers IP Review
OUT-LAW Radio, 26/04/2007
Andrew Gowers speaks exclusively to OUT-LAW Radio on World
Intellectual Property Day on the story behind his influential
Government-commissioned review of IP.
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to OUT-LAW Radio, the weekly podcast that
keeps you up to date on all the twists and turns in the world of
technology law.
Every week we bring you the latest news and in‑depth features
that help you to make sense of the ever-changing laws that govern
technology today.
My name is Matthew Magee, and this week to celebrate World
Intellectual Property Day we have an exclusive interview with the
man who will shape intellectual property in the UK for years to
come, Andrew Gowers. Now that the dust has settled on his
massive Treasury Commission report on IP in December and some of
his recommendations are already being acted on, we find out how
what he really thinks of the state of IP law, and we hear how he
came close to giving the music industry the shock of its lifetime
by actually reducing the copyright term on music.
But first, the news:
- European Commissioner hints at Microsoft break-up, and
- investigator fined for blagging details from Government
department.
The European Commissioner in charge of the long running
antitrust case against Microsoft has said that the Commission
should consider using structural remedies against companies which
ignore its orders.
The Commission has repeatedly claimed that Microsoft is
violating its 2004 Antitrust Order and as recently as March accused
it of breaking its conditions. One structural remedy is the
enforced breaking up of a dominant company.
Neelie Kroes told the American Bar Association last week
that Microsoft is the first company in 50 years of antitrust policy
that has refused to comply with a Commission decision. She said,
“There could be a situation in which a dominant company has
repeatedly abused its dominant position, or where it has
consistently failed to comply with a behavioural remedy despite
repeated enforcement action. From this it could be reasonable to
draw the conclusion that behavioural remedies are ineffective and
that a structural remedy is warranted."
A private investigator used deception to obtain personal
information from the Department of Work and Pensions on
250 people passing it on to a finance firm which was
collecting debts.
The company and its managing director must pay £8,200 in fines
and costs.
Infofind Limited pleaded guilty to charges brought by the
Information Commissioner's Office of illegally “blagging” personal
details and selling them to a finance firm.
The company and its managing director Nick Munroe were
convicted at Kingston Magistrates' Court of 44 counts of
unlawfully obtaining and selling personal data.
Infofind was found guilty of breaching the Data Protection Act
in order to trace outstanding debtors on behalf of finance company
On:Line Finance. The company acted unlawfully despite signing an
agreement with On:Line Finance that it would comply with the
Act.
That was this week’s outlaw news.
Ten years ago if you said to most people that you worked in
intellectual property they would have assumed you meant that you
rented houses to professors. Nowadays, thanks to fake designer
handbags, software piracy and the ethics of ripping your CDs to
your iPod, an awareness of IP and its impact on our cultural and
social as well as our business life is widespread.
Such a rapid ascent of IP to general prominence has made the
political world look at it anew, and the Chancellor commissioned
one man to take a bold, radical look at IP law and come up with an
analysis and recommendations on what it had got right and what it
had got disastrously wrong.
That man was Andrew Gowers and he spoke exclusively
to OUT-LAW Radio about refereeing the bunfights between rival
groups and his satisfaction at just how quickly some of the
recommendations have been adopted.
With issues such as a private right to copy music on to
computers and the number of years records should remain in
copyright at stake, Gowers' consultation and report was always
going to involve some pretty lively clashes. He said that his job
was to look beyond that and identify the really important
questions.
Gowers 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 a sort of polarisation, and 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.
Gowers is now a PR man for city firm Lehman Brothers but
spent his career as a business journalist, eventually becoming
editor of the Financial Times. He made use of his distance from the
business interests of multinational corporations to look at the
philosophical fundamentals of IP. He found that protections for
corporations were in severe danger of going too far. It is time, he
says, for users to fight back, for the sake of our cultural as well
as our economic health.
Gowers 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 old 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. 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
has tended to be larger, better financed, more articulate than the
fragmented number of essentially 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 have stopped rolling in the direction of the one way
ratchet. 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.
One of the major sticking points for the review was the length
of copyright protection afforded to sound recordings. The record
industry, realising that rock and roll recordings were about to
fall outside the 50 year protection, mounted a major lobbying
campaign to have the term extended, drafting in ghoulishly youthful
former pop star Cliff Richard to bolster their case.
Multinational entertainment companies are used to winning
lobbying campaigns, but Gowers revealed that, in fact, he flirted
with reducing the copyright term, a move that would have
revolutionised the music industry in Britain.
Gowers I could have made a case for
reducing it based on the economic arguments. As it is we left it in
place. 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.
Gowers stuck the status quo on music copyright terms, as he did
on a number of major issues. He was given total freedom to rewrite
the rules if he wanted to, but turned in a report whose
recommendations were interesting rather than adventurous. Was he
too soft? Is it a fair criticism to say as many did on the report’s
publication that he was not radical enough?
Gowers 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 is 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. 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.
In the end Gowers recommended that private copying of music be
allowed, and without a compensating levy on blank CDs, that
exemption from copyright be granted for “transformative or
derivative works”, and that CDs with digital rights management
technology on them should be labelled as such.
His influence on government policy may not be radical, but it is
significant. He says that the government has accepted all his
recommendations, and that they will become law over the next
year.
Gowers 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 2008.
Andrew Gowers there, giving OUT-LAW Radio an exclusive
insight into the thinking behind the most influential report on
intellectual property in a generation. You can hear the interview
in full.
Well, that is all we have time for this week, thanks for
listening.
Why not get in touch with OUT-LAW Radio? Do you know of a
technology law story? We would love to hear from you on radio@out-law.com.
Make sure you tune in next week; for now, goodbye and have a
good World Intellectual Property Day.
OUT-LAW Radio was produced and presented by
Matthew Magee for international law firm
Pinsent Masons.
