Obstacles, obstacles

The UK government is reviewing Intellectual Property at the moment. Ian Hargreaves, an academic and former newspaper editor, has been given the task of following in the footsteps of numerous recent reviews and consultations to yet again try to come up with a prescription of how to fix copyright.

This task, as Prof Hargreaves probably realises by now, is a bit of a nightmare. It pre-supposes that something is broken, that its the governments role to fix it, and that the past ways of doing things are to blame. David Cameron didnt make it any easier when, in his out-of-the-blue announcement of the review, he said that he had been prompted to instigate it by Googles founders, who have told him that they couldnt have started their business in the UK and that our IP laws (specifically the absence in them of the american principle of “Fair Use”) were to blame.

I suppose it must be tempting for a Prime Minister to imagine that a small tweak in an obscure area of law might prompt a flood of multi-billion pound businesses to spring up around the “Silicon Roundabout” but its also absurd and unimaginable (even if you ignore the hardly irrelevant observation that Google do about £2bn of business in the UK, seemingly without any fatal impediments from IP law).

So Prof Hargreaves has to go back with something for Cameron. After going to all the trouble of doing a review, at breakneck speed, a report saying “do nothing” probably isnt an acceptable outcome.

But it may be one of the least worst options. What the Prime Minister is focussed on, it seems, is helping SMEs and promoting entrepeneurialism. IP, he is told, is a barrier to people launching businesses and doing clever, Googleish, things.

What doesnt seem to have been considered, at least before the review got going, is that IP law is by far a greater begetter of innovation and entrepeneurialism than it is an inhibitor of it.

Of course, IP law allows a rightsowner to decline to licence their content. If a startup depends for its success on obtaining rights to other peoples content then it definitely has a problem should the licence turn out to be hard to get. But if that happens its a mighty leap to blame IP law, and a complete misunderstanding of what copyright means.

Copyright is the right to say no, to keep your content private if you want. In reality its effect is to encourage people to distribute their stuff as widely as possible – a goal which is achieves with spectacular success. So if copyright owners decline to licence their content to someone theres probably a reasonable explanation (although unreasonable ones are just as valid).

In my experience licensing content for a big media organisation, the most common reason why we declined licences was because the terms being offered are unrealistic, often wildly so. Is has become almost axiomatic on the internet that content is free, and so content-dependent businesses can only succeed if their costs are low or zero. So many startups choose to source theirs from elsewhere because its cheaper than creating their own and are often genuinely amazed when their (frequently risible) offer is declined.

In other words IP licensing can very well be a barrier to SMEs, in the same way as lack of wealth or availability can be a barrier to me living in the nicest mansion I can find. But that doesnt mean the law is either to blame nor that the law needs to change to advantage one party (the one not making the investment in content) over the other (the one which does).

That this review was sparked by Google is almost comical, since they have made one of the biggest businesses in the world out of treating other peoples content as a free resource. It would seem to me that they should be careful what they wish for because the status quo could barely be more skewed in their favour.

Hopefully the review will reach some sensible conclusions, however unpromising its origins. I have some suggestions about things which could helpfully improve things for all the stakeholders, not just a few of them. Ill post them later. In the meantime have a look at the responses the review has garnered so far at the IPO website.

It has certainly got people thinking.

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