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net.wars: Waiting for Gowers

by Wendy M Grossman | posted on 17 November 2006


So here it is November, and we are drumming our heels impatiently (to the annoyance of the new downstairs neighbours) still waiting for the results of the Gowers Review of Intellectual Property, which was supposed to report to the Chancellor, the Secretary of State for Trade and Industry, and the Secretary of State for Culture, Media, and Sport "in Autumn 2006". I'm not sure when "Autumn" officially begins or ends, but I'd go with August Bank Holiday/Labor Day to the Sunday when the clocks change.

Wendy M Grossman

Perhaps the delay is due to global warming.

The Gowers Review is large and complicated. One change the recording industry is lobbying for is copyright term extension for sound recordings; although copyright in sound recordings is 95 years in the US, here you only get (weep for them) 50. The Open Rights Group, on whose advisory board I email, held an event to air the matter earlier this week. It is heartening to report that the event was full of people and passion: one reason copyright has kept getting extended is that no one outside the industry seemed to care.

There are a number of things that aren't included in the review.

  • Government information, for example, which had its own review in 2000.
  • Crown Copyright and Parliamentary Copyright (it may not make sense to an American that the text of national legislation is copyright, but so it is).
  • The Patent Office is doing its own review of trademarks and the definition of a "technical step" that's required to make something patentable – this applies in a vital way to the question of patenting software programs.
  • But things like digital rights management, orphan works, archives' right to make preservation copies, and the problem that of perpetual copyright in unpublished work are all being considered. Yes. A 15th century, anonymous, unpublished poem cannot legally be published or copied.

    The problem is that so many deals can still be cut in smoke-filled back rooms. The reviews' original plan seems more interested in business IP use than in consumers' rights.

    We say again: all intellectual property law is a balance between rewarding artists and creators and the rights of the public to access and use their own culture. Corporations that have bought up large numbers of copyrights won't care about this, but (as I also keep saying) every creator is a net consumer of intellectual property. Every writer reads more than he writes; every musician listens to more music than he learns or composes; every filmmaker, even Woody Allen, sees far more films than he will ever make.

    The more restrictive – or, in Pamela Samuelson's word for it, maximalist – copyright becomes overall, the less people will be able to build on the past to produce new work. And no one, no matter how much of a genius, ever creates things that are entirely new with no reference to what has gone before.

    So my hope is that what's taking the extra time is that there are lots of impassioned submissions and Gowers and his team are having to consider public interests they didn't expect. And not, instead, that what's happening is behind-the-scenes dickering to skew the report against the public interest.

    It's only the future of copyright in the UK.

    Still: the point isn't to rush to release the report. The point is to get the report right.

    What should happen? The Skeptics, another subculture I inhabit, have a saying with reference to the paranormal that "Extraordinary claims require extraordinary proof." Copyright has been with us for centuries, but the relentless march to extend it has vastly accelerated since the mid-1970s. I think we should class the claim that further extension is necessary as extraordinary, and we should demand commensurate proof of its need from those who are lobbying for it. Especially since the industry's major players are the same in every country; in other legal areas we do not assume that the UK must have the same laws as the US. Why should that be true in copyright?

    While we're waiting, I have long thought that we need to replace the term "intellectual property". It's a bad metaphor, and calling the intangible results of the creative process "property" stacks the deck against anyone in favour of public access, because as soon as you talk about limiting the term of property rights you sound like a thief. I've been trying to come up with a term that expresses something about products of the creative process ("croducts"?) or what John Perry Barlow talks about as creatures that form in the intellectual and emotional space between two people. I haven't had very much luck. (Could we talk of a "clever"? or borrow Vannevar Bush's term for his Web-like fantasy machine, "memex"?) "Intellectual children" is my best analogy: like children, you create and murture the products of your mind, and at some point they leave you and have to find their own way in the world. You do not, ever, own them.

    A free copy of one of my books to anyone who can come up with a really good answer to this. Meantime, I'm sure Punxsutawney Phil will be along any day now, looking for his shadow.


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    Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).