IP law probe MPs hunt for smoking gun, find plenty of smoke

Analysis There’s an elephant in the room as Parliament’s inquiry into intellectual property policy rolls on. In the foreground, there’s the role of the officials who are supposed to support it. In the background, there’s something more troubling. Within the past two years - and without a hint, let alone a fanfare - the UK’s economic strategy has radically changed. It favours fashionable new sectors while downgrading successful UK sectors such as design, music and TV, which are based on "intangible" rights. This is not merely a shift in industrial policy; it would appear to be a clear case of government intervening to "pick winners".  More articles about cigarettes, click here.

However, the "winners" here are mayfly internet startups that even the No 10-appointed ambassador to London's Tech City admits won't really create wealth. "Picking losers" might be a more accurate term. It’s a curious silent shift to make because the long-term economic fortunes of the UK – and advanced Western economies – are increasingly reliant on these intangibles for growth. These intangibles, unlike the products of the tangible industries of textile and hardware, cannot be made more cheaply in the emerging economies. Design, copyright, patents, brands and trademarks need to be protected and exploited to the utmost, and we’ll need a lot more of them. MPs may be confronted with more pressing issues such as the eurozone collapse, but surely none looms larger in the long term than the question of: "What will the British economy do?"

 There are two conventional views on where this new stealth economic strategy has come from, and each is as troubling as the other. In one view, rogue civil servants are operating an independent policy beyond oversight or ministerial control. On the other hand, it is official Coalition policy but one that Number 10 cannot explain or even acknowledge publicly: it’s the policy that dare not speak its name. Either way, the view strongly lobbied for by overseas internet multinationals is that for the internet "to win" British rights must be weakened. This emerged in the second evidence session held by MPs in the cross-party group on intellectual property in its current inquiry. Intellectual property: Who needs it?

The first session called on Google and digital rights campaigners to explain their case for weakening the current intangible rights framework by removing protections. The second session heard many cries of incomprehension in response to these changes, and complaints about the conduct of the UK Intellectual Property Office (IPO) and the process of the Hargreaves Review, which looked into the effects of intellectual property (IP) law on Britain's future. But as for the strategy change, whodunnit? Careful questioning didn’t unearth a smoking pistol.

But there was no shortage of smoke. Publishers Association chief Richard Mollet summed up the philosophical shift that has taken place. Instead of treating copyright as the foundation for market-driven growth, copyright was now viewed through a pirate’s eye patch: as just another burdensome piece of red tape. “I feel there’s a chasm, a conceptual chasm, between the view of IP as a property right, which is recognised as such by UK, European and global law – it’s yours, you own it, you can trade off it – versus the other conception of copyright as a regulation, something that trips consumers up, and therefore the less of it there is the better,” said Mollet.

“That’s a gap I don’t think can be bridged, and that view permeates through some IPO thinking.” Hargreaves explicitly endorsed this view of copyright as a burdensome regulation, and it's implicitly now government policy. En route to Hargreaves' report becoming official government policy, nobody had thought to disagree. This rubber-stamping was raised by several witnesses in contrast to the approach of Richard Hooper, who had been appointed to implement the Hargreaves Report’s "Big Idea" – a digital copyright exchange. While Hargreaves had dutifully carried out his homework, witnesses said, Hooper had questioned his task. This suggested the IPO, which wrote much of Hargreaves' report, was carrying out a political assignment.

But reality wasn’t so simple. It may be, one witness suggested, a case of bureaucrats not understanding the industries. Dids Macdonald, of the Anti-Counterfeiting in Design (ACID) group, had spotted more magical thinking. She told the inquiry that officials still thought “design happens by chance”, and isn’t really a skill worth protecting. Officials' obsession with changing copyright appears to downgrade design, she implied. We also heard evidence of bureaucrats taking an activist role, possibly misleading their ministers. “Some evidence was not fed through to ministers,” said Andrew Yeates of the Educational Recording Agency. And the consultation also heard that IPO bureaucrats had been attempting to change international policy before proposals had been discussed, let alone decided, in the UK. This state-within-a-state had its own very active Foreign Office, it seems. 

“For the exception for data-mining, BiS [the Department for Business, Innovation and Skills] has been trying to ‘build up a head of steam’ without any evidence for the policy,” said one witness. “The policy is being lobbied in Europe but nobody in the UK has asked whether it’s good for the UK economy.” Mollet also said he’d been in meetings where officials had told him “copyright won’t exist in 20 years”. This is a giddy claim since copyright has survived the invention of electricity and moved beyond copies almost 200 years ago. But it is the kind of thing we can imagine penpushers cheering. It would be interesting to hear which public servant had made this assertion. We also heard how the IPO was "helping" write policy, such as the Hargreaves Review, and then reviewing it. One witness described this as the IPO “marking their own homework”.

There’s another term, coined by blogger Frank Fisher, which is even more apt here: "carousel propaganda". Yeates also noted that officials had downgraded the contribution of creative industries from 8 per cent of GDP to 3 per cent overnight, much to everyone’s surprise. So there’s plenty of evidence of a policy shift – and evidence of prejudices and bureaucratic activism. But not, so far, of where all this originates. Witnesses wanted a stronger representation for intangibles in Cabinet, and were understandably frustrated that declining sectors were strongly represented in Whitehall (manufacturing) but growing sectors (intellectual property) were not. MP Jim Dowd warned the witnesses of getting what they wish for. “People name a department after a problem,” he observed wryly, “and think they’ve solved the problem.”