October 15, 2005

Launch of the RSA's Adelphi Charter on Creativity, Innovation & Intellectual Property

Professor James Boyle
John Howkins
Sir John Sulston
Paul Crake, Chair

These are my notes from the speeches given to introduce the Adelphi Charter at the RSA, on Thurs 13 October.

John Howkins
The question that was in mind 3 or 4 years ago when they had the idea for the charter was a very simple question. Getting question right is essential for getting the right answers.

What is intellectual property for? What is the purpose of intellectual property? Of copyright and patents?

Hard to come up with an IP policy unless you know what you're doing it for.

Several answers come to mind. The first answer is that they are to incentivise people, to motivate people to create work. This doesn't stand up to examination: e.g. algebra, the world wide web. Paintings didn't used to be copyrighted and yet the same amounts of skill etc. have been put into older paintings.

The argument that if you make something you should have protection so you can make money of it seems like a good answer. Reward is important, but it doesn't really do it.

Third argument is counterintuitive. It's to enable people to have access what others make. To use it and have access. E.g. patents require you to publish your work.

How do you compromise and balance between the two? How do you decide where the limits are?

IP - hardly any debate going on, hardly any evidence. There's a claim that we should have longer copyright term but there's no evidence one way or the other.

RSA now producing some principles that would fit the public service that they identified to help creativity and innovation.

No body likes the phrase 'intellectual property', it is a divisive phrase. So that's why they renamed it the Adelphi Charter.

The charter is in two parts:
- a set of principles that should be the foundation of any IP policy, that they should sustain a society's creativity and innovation
- a list of public interest tests that they hope the government will adopt and subject their legislation to.

[A short film describing the charter was then played.]

Professor Jamie Boyle
Alternatives to monopolies is prizes. Goal was to be banal, to make points that no one could argue with, but which in this bizarre world at the moment are seen as extreme. For example, the point that law and policy should be based on evidence and facts.

What we should learn is not hostility towards IP, what it is is a tool which is constantly being re-examined. Is it doing its job?

Some examples of applying the principles.

In the US, you used to get 28 years copyright with 28 registered renewal. That was abolished and it became automatic. But only between 7 and 11 per cent were renewing. This means 89 per cent didn't want a renewal, so abolish balance for just 11 percent of people and content is locked up. Benefits small, costs high. Should never have happened.

Software patents. Requires inventor to disclose details to a level that allows people to recreate things entirely. Information that might have been secret comes eventually into the public domain.

Open source. Distributed creativity, GPL. Robust model, and economically robust model. US/WIPO says they are promoting IP rights not giving them away. But IP rights are a tool not an end.

Broadcaster's Right. Another layer of rights above and beyond copyright where broadcasters have rights over what they broadcast. Theory is that broadcast will collapse without it, and that webcasters need it too. But 100 countries haven't adopted this existing right, but looking at what happened in those countries, to examine real evidence is anathema to the policy makers.

Sir John Salston
Wasn't always aware of the principles that we're discussing now. Involved in the Human Genome Project. The task of sequencing was completed a couple of years ago to the level currently possible, but understanding it is another matter. DNA is a 3,000 million letter code.

Have a mass of knowledge that needs sharing and using for centuries to come. Some implications of it now is that we're better at medical, diagnostics where DNA has a bearing. Will be new drugs, new therapies, but that's not why it was done. It was the done because wanted a full understanding.

Doing this was inevitable, but what was not inevitable was that the library was going to be open, because they only narrowly avoided a monopolistic source for this data which would have required a hefty fee to access this information. Having a proprietary monopolistic database at the centre of a business plan would have destroyed communication in this whole field, because it would have required to be successful a clamp down on the sharing of information. So scientists would be unable to talk to those who had not paid a fee, or even each other.

This had an effect on Salston, that they had only so narrowly managed to get this information into the public domain. This attempt to privatise the human genome has many parallels which need fighting.

Excessive enclosure throttles research and innovation, ethics, widens gap between rich and poor specially on a global scale, and this economic imbalance that arises as the rich enclose and get richer should give people pause.

All endeavors of the human race. What are we here for? Exploration, research and understanding. So important not to throttle activities by focusing on what is marketable.

Lynn Brindley, Chief Exec of the British Library
There is evidence that some of the rubbish of 100 years ago is the centre of research today, and the role of libraries has been to look after that, and provide access. But what is that role in the digital age. The Charter provides a set of principles and a framework in which practical work can sit.

Used to be that the scholarly information chain was very clear. But the internet has blown that to bits, so how do you cope with that?

A particular issue is statutory mission to be the intellectual and scientific memory of the nation. What does that mean digitally? UK has taken some steps in terms of legal deposit, but it's complex, taking a long time, need to balance public's rights and those of the copyright holders. If we don't crack that there'll be no access to this material in 50 to 100 years time.

Cory Doctorow, EFF
Social contract for creativity and public access has ruptured.

Napster came, but within months, was gone. The response to the response has been clear. Now 1 in 50 lawsuits in the US is the record industry suing a fan. The contract we're being offered now is unilateral and is being renegotiated without our permission.

Industry sees value in everything, and there is value, but they are trying to get access to that value which before was on the public side of the copyright bargain. DRM is an attempt to make a grab at that public side.

The Adelphi charter is a social contract that explicitly spells out the public side of the copyright bargain.

[There was a Q&A afterwards, but I've not taken notes from that. Bit too verbose for me to distill out the points.]

The RSA have published the charter in a pretty little pdf on their Adelphi Charter site, but frankly PDFs are a pain in the arse, so I'm copying the whole thing here, in toto.

Adelphi Charter on creativity, innovation and intellectual property Humanity’s capacity to generate new ideas and knowledge is its greatest asset. It is the source of art, science, innovation and economic development. Without it, individuals and societies stagnate.

This creative imagination requires access to the ideas, learning and culture of others, past and present.

Human rights call on us to ensure that everyone can create, access, use and share information and knowledge, enabling individuals, communities and societies to achieve their full potential.

Creativity and investment should be recognised and rewarded. The purpose of intellectual property law (such as copyright and patents) should be, now as it was in the past, to ensure both the sharing of knowledge and the rewarding of innovation.

The expansion in the law’s breadth, scope and term over the last 30 years has resulted in an intellectual property regime which is radically out of line with modern technological, economic and social trends. This threatens the chain of creativity and innovation on which we and future generations depend.

1. Laws regulating intellectual property must serve as means of achieving creative, social and economic ends and not as ends in themselves.

2. These laws and regulations must serve, and never overturn, the basic human rights to health, education, employment and cultural life.

3. The public interest requires a balance between the public domain and private rights. It also requires a balance between the free competition that is essential for economic vitality and the monopoly rights granted by intellectual property laws.

4. Intellectual property protection must not be extended to abstract ideas, facts or data.

5. Patents must not be extended over mathematical models, scientific theories, computer code, methods for teaching, business processes, methods of medical diagnosis, therapy or surgery.

6. Copyright and patents must be limited in time and their terms must not extend beyond what is proportionate and necessary.

7. Government must facilitate a wide range of policies to stimulate access and innovation, including non-proprietary models such as open source software licensing and open access to scientific literature.

8. Intellectual property laws must take account of developing countries’ social and economic circumstances.

9. In making decisions about intellectual property law, governments should adhere to these rules:

* There must be an automatic presumption against creating new areas of intellectual property protection, extending existing privileges or extending the duration of rights.

* The burden of proof in such cases must lie on the advocates of change.

* Change must be allowed only if a rigorous analysis clearly demonstrates that it will promote people’s basic rights and economic well-being.

* Throughout, there should be wide public consultation and a comprehensive, objective and transparent assessment of public benefits and detriments.

We call upon governments and the international community to adopt these principles.

Adelphi . London. 13 October 2005

My thoughts
The Adelphi Charter is a nice document. It's short. Concise. Says some good things. But I can't help wondering whether the banality that James Boyle says they were aiming for - and which they clearly achieved - might mean that it has less impact than perhaps it might otherwise have.

The problem with the Charter is that the devil is in the details, and the wording is in some cases so banal as to be open to interpretations that, I think, would go against the spirit of the document and the intentions its writers harboured during its genesis.

Take Point 3:

The public interest requires a balance between the public domain and private rights. It also requires a balance between the free competition that is essential for economic vitality and the monopoly rights granted by intellectual property laws.
Maybe I'm being cynical, but I can just see the phonographic industries arguing that the 'balance' between public and private needs means that they must be given the ability to exploit their intellectual property for longer through copyright term extension because that would provide them with more money to plough back into the industry so that the public can 'benefit' from more new music. This, despite the fact that the music industry now has no patience with new bands, dropping them as soon as they fail to recoup their costs; focuses all its marketing budget on a minority of top-selling acts; and is failing to provide access to back catalogues for a reasonable price (or sometimes, at all).

I also fail to see any clear statement on fair use/dealing. Now, I know some people think that fair use is dead in the water. Certainly for high-bandwidth media such as film, TV and music, it is. The permissions-based society we now live in forces all uses of sound and of moving pictures to require permission - there is no fair use defence anymore. In text and art, fair use exists, although the edges are fuzzy and it's being eroded every day. If the industry had its way, it'd go the same way as in music and movies.

This again seems to fall under the aegis of Point 3, the balance between public and private needs and rights. But again, there's so much leeway for interpretation that there's nothing there to indicate that the law should support fair use.

I believe in fair use. I think that I should be able to use small bits of other things in what I do. The entire computing industry has been built on the concept of taking snatches of someone else's work and incorporating it in your own, and not only has it not suffered from it, it's flourished. Now, I can quote bits of text from books or articles if I want to and incorporate them in my work, but I can't take snippets of film or music. There are, in my mind, very compelling arguments why I should be able to do that, although I won't rehash them here as Larry Lessig does a far better job in Free Culture. But the Adelphi Charter doesn't directly address this issue at all and I think it should.

Another bit of fuzziness that is disappointing is Point 6:

Copyright and patents must be limited in time and their terms must not extend beyond what is proportionate and necessary.
I have a real problem with the words 'proportionate' and 'necessary', again because they are easy to argue both ways. What, precisely, does 'proportionate' mean? In a world where the stated aim of some lobbyists is to extend copyright terms to 'forever minus a day', is 1000 years proportionate? 500? 100? And necessary. For whom? The industry will always argue that term extension is proportionate and necessary and unless we can come up with a better way of expressing how and why terms need to be limited they are going to use these very words to sway the policy makers in a direction opposite to that of the Adelphi Charter.

The Adelphi Charter reads like an executive summary, neatly couched in management speak, but missing the rest of the report. Where are the facts and figures to back this up? The case studies? The meat of it? Where are the compelling arguments? The discussion? The dissection of the extremist viewpoints that are so prevalent now?

What is the point of a charter that essentially just says 'play nice' without giving any sort of reason why playing nice would benefit everyone?

I think I understand why they went for banal. If you can fly an idea under people's radar by presenting it as harmless and inoffensive then maybe you can subvert their opinions without them realising it. Maybe you can present things in such an unarguably sensible way that people just can't, in comparison, find justification for the extremist viewpoints that are otherwise presented to them. Thus you bring them to a more moderate line because they are compelled by the simplicity and incontrovertibility of your statements.

Or maybe banal also means 'easily ignored'.

One of the questions after the speeches asked what will happen now? Having a document is all well and good, and I don't mean to sound too negative about this - it is good that this charter has been written. But it will do no good if all it does is sit on people's desks or moulder in a dusty corner of the internet.

Apparently, and I think it was Howkins who said this, copies will be given to every government, to the heads of delegations to WIPO, to Kofi Annan at the UN, to people at UNESCO, WTO and ITU, to trade associations and the RSA will work on trying to get bodies to adopt the charter.

I guess that's a start, but it remains to be seen if the Adelphi Charter will have any sort of impact.

Rationality in the debate
I think it's worth going over here a conversation that I had after the event during the schmoozing session about rationality. I think one of the strongest points made during the evening, a point that James Boyle has repeatedly and articulately made, is that there needs to be more examination of available evidence and facts when any legislation regarding intellectual property is drafted, and at the moment there just isn't.

This is one of the strongest points of the Adelphi Charter, I think - it clearly advocates a evidence-based approach, instead of the faith-based approach that the IP industries use to manipulate public opinion and which governments employ to develop policy.

At the Larry Lessig debate the other week, he effectively wiped the floor with the IP industries' faith-based positions by rationally going through facts and figures and demonstrating that there would be no increase in creativity or innovation if phonographic copyright term was extended. The look on John McVay's face pretty much said it all when Lessig was done - 'We've just been made to look like fools'.

This is why the music industry puts so-called piracy at the heart of the debate, and why 1 in 50 lawsuits in the US is the creative industry suing its own customers - because those positions allow them to take up an emotive stance and to argue that people, e.g. artists, are being 'hurt' by copyright infringement, and that thus the industry needs more and stronger IP rights. They argue from an emotional point of view because they can't argue from a factual point of view, because the facts do not support their stance.

Last year I wrote a piece for The Guardian on a report by Felix Oberholtzer and Koleman Strumpf on a report they'd written comparing actual download statistics with actual sales statistics. They discovered that at worst there was no impact on sales, and at best there was a very small positive impact. I had a devil of a time trying to get someone from the music industry to talk to me about this study and in the end the guy from the BPI just blustered and harumphed his way through the interview, claiming repeatedly that the study was 'flawed' and then quoting industry surveys at me that, surprise surprise, supported the BPI line. He didn't, of course, acknowledge that the BPI's surveys are actually far more seriously flawed than the Oberholtzer-Strumpf study.

It was a case of emotive arguments being put forward to try to counter rationality and fact.

If the Adelphi Charter can achieve a swing away from the emotional to the rational then it will have had an important impact. I don't think that, as it stands, it's going to convince anyone to reassess their view on intellectual property because I don't think there's anything in it that is capable of changing people's minds. Those who already agree with it will continue to agree with it, and those who don't will dismiss it. But I think it can encourage more reasoned discourse on the matter, and if it does then that will be a huge, and very positive, step forward.

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