Gowers review heavily critiqued
The theme of the night’s discussion among leading academics, lawyers, and representatives ranging from the Federation Against Copyright Theft to Scotland’s small business interests was that the Gowers report was plagued by a lack of supporting evidence and little thinking about the practical side of the reforms that it espoused. The meeting, entitled ‘The Gowers Review: Challenges for Scotland’, was held at Old College in the University of Ediburgh and sponsored by the AHRC Research Centre for Studies in Intellectual Property and Technology Law.
First and foremost, Prof. Phillips, of IPKat fame, noted that the quick time schedule of the report — 200 working days from start to finish by his reckoning — meant that there was little thinking and little evidence behind the report. This isn’t even to mention the question as to how the Gowers team sifted through and actually thought about the massive amount of material submitted to it — some 440+ submissions by organisations and individuals, and of course its two commissioned reports.
It was generally observed that perhaps that the Gowers Review is an instance of ‘evidence influenced ‘ policy making rather than the ‘evidence based’ approach that the Report itself claims to take. A certain Llama chimed in that there was hardly any evidence at all in the report, and what was there often didn’t actually support the conclusions. Everyone generally agreed with this sentiment and that they would have liked to have seen a more meaningful and comprehensive review of IP in the UK.
But what about Scotland?
Scotland, it seems, is always left asking the above question. The Gowers report, as was pointed out, barely even mentions Scotland let alone gives serious consideration to the Scottish aspect of the recommendations in the report. If you are playing along at home, the answer is twice in the body of the report — neither mention with any substance. For comparison, Germany gets mentioned 18 times with France close behind at 11. Phillips noted that his 10 minute presentation was surely ‘longer than Gowers spent on Scotland’.
To this end, Phillips suggested a MacGowers report — the Scottish government making a serious assessment as to IP in Scotland. Even though the big three. Patent Copyright and Trade Mark, are at the root a UK-wide issue, how these rights get played out at the branches is very different between jurisdictions — perhaps no more so than in how these cases progress through the courts.
This was a thread mined repeatedly by Mr. McGowan, FACT’s representative at the event. He re-iterated the need to seriously address the criminal law aspects of copyright infringement north of the border, as they presented quite difficult obstacles to criminal copyright enforcement measures. To his credit, he didn’t even mention p2p file sharing, and stuck exclusively to large-scale commercial piracy — more than once mentioning that famous den of iniquity known as the Barras in Glasgow. It is the only presentation by FACT or a similar body that I’ve seen that I can say that I didn’t blatantly disagree with the vast majority of what was said. Commercial piracy on the scale he was discussing is a serious problem — but we must be vigilant to ensure that the measures granted to address this issue do not overstep their bounds into violating basic rights.
Indeed, the interaction of all types of IP, not just patent, copyright, and trade mark, and the civil and criminal Scottish courts should prove fertile ground for further study. There is little work done in this area of study.
Should Scotland produce its own Report?
Who knows if Holyrood is ready to take up the mantle of IP policy, but it seems clear that it should at least investigate the issue. For those of you outside of the UK, and even for some that are in it, this year marks the 300th anniversary of the Act of Union between Scotland and England. It also marks a Scottish election year where the Scottish National Party may be set to win a significantly increased number of seats. This means, if anything, that there are more frequent discussions about Scotland’s role in the UK.
Leaving the politics of Scottish independence aside, Holyrood could easily take this opportunity to tout the advantages of the how IP law gets worked out here as a way of promoting growth. A detailed, evidence-backed report could go a long way towards encouraging growth — especially in the burgeoning Scottish life sciences industry. Ease and cost of such things as patent litigation is no small matter in these fields, and an attractive setting on this front could be yet another reason to set up shop in Scotland.
Is Gowers effective?
Not one speaker graced the podium without stating that the Gowers Report did not have at least one misconception or practical problem in their respective area. In fact it was widely commented on that the slant of the report, and indeed the very fact that it was the Treasury Department that got the review, was plagued by political infighting. Phillips, hitting again at the structural faults, noted that the IP issues that Gowers doesn’t address in depth, such as geographical indications of origin, are because they fall under DEFRA and not the DTI; some believe the DTI will be looked at rather longingly with an axe in his hand by Gordon Brown should he become Prime Minister. The Gowers Review may play into this political issue and the scope of the report could be evidence of this.
As a big picture governance issue, one speaker rightly pointed out that the bigger question, which Gowers did not even attempt to address, is just which Ministry should be ‘the one’ to deal with IP — though it was suggested that a cross governmental body on IP could be the way to go.
What Gowers got wrong
Besides the critiques listed above, the following aspects of the report were reviewed and found wanting:
- The system of voluntary registration of copyright would not be effective. Most orphan works that museums and libraries (in particular) are interested in are of the type that would never be registered (such as family photos).
- The recommendations to improve patent quality were good, but not likely to actually improve patent quality. In addition, the recommendations in were a bit redundant as to work that is already going on in this area.
- The private copying exception for format shifting was generally unworkable. How does one regulate the allowance of a single copy per new media format? Having a legal right to do so would be unlikely to produce any changes in consumer behaviour.
What Gowers got right
The night wasn’t all dark for the report. Though the panelist didn’t go into every single detail (how much can one do in an hour), the following points in the report were seen as beneficial:
- Improving the research exception in patent law could bring greater flexibility and greater growth in the sciences.
- Copyright exceptions for distance learning were needed.
- Getting the Office of Fair Trading to investigate collecting societies would prove very interesting depending on the result. This might have a beneficial impact for many artists and authors.
- Exceptions for archival purposes for copyright were needed by libraries and they were pleased to see them in the report.
Term extension
Term extension wasn’t a main focus of anyone’s remarks. It was noted by Professor Simon Frith that the impact of the report, including the recommendation against term extension, was a threat only to specific music industry business practices and not to the music industry generally. As a final point, it was questioned how effective the report would be at actually getting the UK to lobby against term extension at the EU level. On this last matter, I think that the mere fact that the Gowers Report denounced the case for term extension is a huge boon to awareness about the issue both among the general public and among our various political representatives.
Summing up
It seems that there is still room for a comprehensive report covering all areas of IP — or perhaps, given the scope, a series of comprehensive reports. These reports could originate from all devolved governments or from a London responsive to areas outside of the home counties. The report is by no means a panacea for IP issues facing the UK, and its recommendations should be read in light of other work in the area. The big lesson, for those looking to the Gowers report for all the answers, is that they simply aren’t there.
