Wednesday, 18 May 2011

Boyle's Law

The FT this morning carries this piece by James Boyle about the Hargreaves Report, even before the report has appeared. Prof Boyle says on Twitter (@thepublicdomain) that the FT should have hung onto it until after the Review appeared: to which I say, as I have said before, if the Hargreaves Review had made use of its blog which the Intellectual Property Office set up and actually given us something useful to go on there'd be less need for leaks. I am still deeply unimpressed by the fact that the blog, and the web pages, were updated so infrequently - and even this morning the front page still carries a March date, since when if I remember correctly there's been one posting on the blog - and very little on Twitter. If some form of purdah had to be observed, we should be told ...

Prof Boyle starts with the Prime Minister's claim that Google says it could never have started its business in the UK, and I think it's about time someone asked, is that a bad thing? Maybe what's wrong with copyright law is that in one place in the world it encouraged the establishment and growth of a business that seems sometimes to have taken to dictating what, in practical terms, copyright law says. Maybe it's the American law that needs tightening up: maybe (and now the European Commission, Competition Directorate, is seised of a small part of the matter) it's that Google needs to be regulated.

Anyway, to come back to the Review. Prof Boyle answers one of the questions I have been wondering about, namely whether the report was going to say anything about any other of the bundle of rights that make up "that property that is called intellectual" (per Benjamin Constant: get a copy of my Dictionary to follow the reference) in his article - here are the headlines I have distilled from his piece, which says there are 10 specific recommendations covering patents, copyright, and the policy-making process:

  1. Do something to stop the growth of, and to clear, patent thickets
  2. No patents for software or business methods
  3. Patents don't work well in fields where there is "sequential innovation", such as IT
  4. Deal with orphan works by  a mixture of collective licensing and individual exemptions
  5. Deal with the "tangled web" of licensing
  6. Make IP policy evidence-based (it uses the word "lobbynomics" to describe the current approach to making policy)
  7. An open-ended fair use exception in copyright is not permissible under EU law (notwithstanding Lionel Bently's arguments to the contrary) so we should first "max out" (Prof Boyle's words) the exceptions that are allowed, liberalising format shifting and archival copying, facilitating text and data mining of scientific literature, giving "more robust protection" to parody and criticism, and pushing the EU to make the system of exceptions more adaptable to the needs of new technologies
I guess to make ten out that you have to break down item 7 into constituent parts. It's clear that there's also something on enforcement with which Prof Boyle finds himself in disagreement, and he mentions that the Digital Economy Act is still "deeply problematic" (another example, perhaps, of the British irony that he elegantly lauds elsewhere in the article: understatement, at least). From that summary, it doesn't look as if there are many solid recommendations for legislation, although Prof Boyle had a small area of newsprint (or online space) to cover it. Item 4 is the part revealed in the FT earlier this week which I blogged about at the time, and it looks to me like a good one. Item 2 is pretty clear and straightforward, and no doubt impossible - though it should be possible to wind things back a bit, and it would surely be desirable to do so. How to implement item 1 is not clear (perhaps it will be when we see the report) and item 3 seems to be no more than an interesting observation - one that might prove influential in an evidence-based policy.

I can't really complain, as I didn't present any suggestions to the review, but I am disappointed to see nothing about the overreaching effects of the trade mark system or the chaos created by the manifold laws on designs (and no, I'm not talking about BL v Armstrong). But I am looking forward to seeing the full report - and hope it will be as elegantly expressed as Prof Boyle's article.

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