Who rattled your cage, Professor Hargreaves?
For those of you who haven't waded through the 100-odd
pages of the Hargreaves Review on Intellectual Property - and
certainly by yesterday evening few had got beyond the executive
summary (including it appears much of the media reporting on it) -
it is actually rather good.
The main propositions espoused by the film, music and
games industries (and ERA) seem to have been understood.
UK content is a great success story. While there are still
issues to be tackled, the UK content industries are considerably
more progressive than many of their counterparts in Europe. And
rigging UK content laws to the benefit of US-based multinationals
like Google really isn't a good idea.
The Hargreaves proposals - once he discovered that the US
concept of "Fair Use" is a non-starter under European law - are
mostly sensible.
All in all, content industry lobbyists could be forgiven
for feeling rather pleased with themselves.
The BBC's technology correspondent Rory
Cellan-Jones has shared his
suspicion that the content industries will be
"cracking open a few bottles".
But read it carefully and the Hargreaves Report contains
one hell of a sting in the tail.
Sprinkled liberally throughout the report are a whole
series of snipes and jibes which ought to give cause for concern at
the very highest levels of the content industry.
The fact is Professor Ian Hargreaves has put on the
Government record a withering critique of the tactics and arguments
of the content industry.
"Lobbying is a feature of all political systems and as a
way of informing and organising debate, it brings many benefits,"
he says. "In the case of IP policy and specifically copyright
policy, however, there is no doubt that the persuasive powers of
celebrities and important UK creative companies have distorted
policy outcomes." (page 93)
Further distortion arises, he says, because "there is a
striking asymmetry of interest between rights holders… and
consumers" (p93).
"There is no doubt," he says, "that the perspective of
consumers has played too small a part in the work of the UK's IP
policy makers."
It sounds remarkably like the professor is suggesting that
the content industry has manipulated the legislative process to the
disadvantage of its customers.
Despite the Government's insistence on evidence-based
policy making, when evidence doesn't suit them content industry
lobbyists simply ignore it. Hargreaves is particularly scathing of
the continuing attempts of the recorded music industry to extend
the term of copyright, a measure which - he says, quoting his
predecessor Andrew Gowers - would benefit "a relatively small
number of performers" at a cost of the economy of £100m.
When evidence is produced, Hargreaves suggests, too often
it is "lobbynomics" rather than economics (p18).
He seems almost incredulous at the quality of research
into piracy. "We have not found either a figure for the prevalence
and impact of piracy worldwide or for the UK in which we can place
our confidence…" (p73). "There is no shortage of claims about
levels of infringement, but in the Review's four months of evidence
gathering, we have failed to find a single UK survey that is
demonstrably statistically robust." (p69)
The track record of the content industries is not good, he
says. "Copyright holders have a long history of resisting the
emergence of technologies which threaten their interests, including
audio tape recorders and VHS recorders. When the first sound
recording technologies emerged, some music rights holders opposed
the recording of music. At that time, it was the recorded music
industry who were seen as dangerous innovators." (p46)
The passions aroused by the "fair use" debate, he implies,
are disingenuous or plain bogus.
"It is… worth noting that the creative industries continue
to flourish in the US in the context of copyright law which
includes Fair Use… But that does not stop important American
creative businesses, such as the film industry, arguing
passionately that the UK and Europe should resist the adoption of
the same US style Fair Use approach with which these firms coexist
in their home market." (p45)
So what should we make of this criticism?
I suspect the pragmatic view of many industry
organisations will be, "So what? Politics is a dirty business. The
important thing is to win and we won."
They might add - with some justification perhaps - that
such comments are the embittered reactions of a man who had been
sold a brief by David Cameron which was simply impractical and
uninformed.
Like it or not, however, Hargreaves has put down a series
of markers. Future Government investigations into copyright - and
they are bound to come - will inevitably take his work as a
starting point. He has effectively raised a huge health warning
over the content industry's lobbying.
The legacy he has left for the industry is that the
approach which served it so well on this occasion may not work
again.
Already it is said, perhaps emboldened by their victory
over Hargreaves that some are spoiling for a fight over his
proposal to legalise private copying.
If it happens, they say, they want a levy on every MP3
player, USB stick and hard drive sold in the UK, as happens in some
parts of Europe.
If they don't get it, there is talk of judicial reviews
and court action.
It will strike some that - in the midst of a recession
with everyone in the country tightening their belts - attempts
to impose an "iPod tax" in order to legitimise something everyone
does anyway might not go down well with the British
public.
If that happens, it may not only be Professor Ian
Hargreaves who will be crying "Foul!"
Sometimes it's better to quit when you're
ahead.