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A new, independent report commissioned by the British Prime Minister has just come out. Its observations are astute and damning with respect to the claims used to rush last year's Digital Economy Act into law after only two hours of Parliamentary debate. The report also criticized the exceedingly poor quality of the evidence upon which that questionable law is based.

The report, Digital Opportunity: A Review of Intellectual Property and Growth, was penned by respected journalism Professor Ian Hargreaves and is based on analysis and opinion from a team of highly regarded scholars, including the amazingly talented storyteller and legal scholar, James Boyle, whose 1996 Shamans, Software and Spleens is one of the most splendid books on knowledge and copyright in the digital age that I've ever read. The people behind the report are impressive; the range of sources consulted even more so.

The tone is set clearly in the Foreword. On page 1, it asks whether the U.K approach to copyright and intellectual property stifles innovation. Yes, Hargreaves states without hesitating.

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Are piracy and copyright infringement real problems? Absolutely, he states. "No one doubts that a great deal of copyright piracy is taking place" (p. 6).

However, the report tempers that with two key provisos - the equivalent of a double-knuckled blow against the central props of the "copyright industry."

First, "sales and profitability levels in most creative business sectors appear to be holding up reasonably well. We conclude that many creative businesses are experiencing turbulence from digital copyright infringement, but that at the level of the whole economy, measurable impacts are not as stark as is sometimes suggested (p. 6). This is pretty much the conclusion I reached in my column for The Globe and Mail this past Tuesday.

Second, "reliable data about scale and trends is surprisingly scarce" (p. 6). Since I've dealt with issues surrounding the economic state of the music and other media industries in other posts, including yesterday's column, I will focus on the quality of the evidence issue here.

Hargreave and colleagues are crystal clear that bad evidence is central to the whole issue of copyright law and adequately determining the vitality of the copyright industries as a whole, from music, to books, television, radio and animation - the whole gamut, including patents. A few examples help to illustrate the point:

  • "A detailed survey of UK and international data finds that very little of it is supported by transparent research criteria" (p. 6); "There is . . . next to no evidence on copyright policy (p. 17); "[R]liable data is surprisingly thin on the ground" (p. 69).
  • "[W] have failed to find a single UK survey that is demonstrably statistically robust" (p. 69).
  • The estimated scale of music piracy in the U.K. in the many studies they reviewed ranged wildly from 13 to 65 per cent (pp. 70-72). Studies globally are much the same, although a single study by Industry Canada and another by the Government Accountability Office (2010) in the U.S. (equivalent to the Auditor General in Canada) are singled out as exceptions to this rule, i.e. they're good and follow valid analytical methods.

Based on the extremely poor quality of the evidence, the report states, "we should be wary of expecting tougher enforcement alone to solve the problem of copyright infringement" (p. 6).

Worse, not only have lobbyists been remarkably successful at driving an agenda on the basis of poor evidence, they have made "stronger Government action against online infringement ... their top priority" without the evidence needed to support such priorities (p. 67).

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And the root of the problem? The authors hold no punches there, either. "Lobbynomics," they call it, a set of unfortunate circumstances whereby "much of the data needed to develop empirical evidence on copyright and designs is privately held. It enters the public domain chiefly in the form of "evidence" supporting the arguments of lobbyists ("lobbynomics") rather than as independently verified research conclusions" (p. 18).

As Lord Puttnam, a leading light in the UK film industries and now MP, stated in regard to the rush job on the Digital Economy Act, "We have been subjected to an extraordinary degree of lobbying… The lobbying process . . . has done none of us very much help at all" (p. 6).

Worse, other MPs have apparently been star-struck by songstresses, celebrities and cinema stars: "there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy outcomes. (p. 92)

Hargreave and his colleagues are under no illusions that much is needed to turn things around. First and foremost, they note that a compliant Parliament willing to do the copyright industries bidding on the basis of flimsy evidence has got to stop. This will require, first, that "Government should ensure that development of the IP System is driven as far as possible by objective evidence" (italics added, p. 98).

Furthermore, "any machinery in this area of policy and public administration [will have]to be robust" (p. 92). In another words, Government will have to be strong and stand up to the lobbyists and do what's right. Maybe a strong Conservative Government will come in handy after all?

They also come up with a handy wishlist, some of which Canadians might find interesting because it takes some good stuff from the recent Copyright Modernization Act while leaving its nasty bits behind. And rather than beating around the bush, they put their wishlist in the form of "shoulds:"

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  • "Government should firmly resist over-regulation of activities"
  • Government should provide "incentives to creators"
  • "Government . . . should appoint a senior figure to . . . establish a cross sectoral Digital Copyright Exchange . . . by the end of 2012"
  • "The UK should . . . establish a framework for cross border copyright licensing:
  • Government should include exemptions for "format shifting, parody, non-commercial research, library archiving", news, analysis and general advancement of knowledge
  • The Government "should . . . build a . . . framework adaptable to new technologies
  • Government "should also legislate to ensure that these and other copyright exceptions are protected from override by contract" (pp. 98-99).

The audacity! In laying out their hybrid marching orders, the authors also point to Canada for a couple of things, reminding us that we need to be mindful of good things in our own backyard rather than always looking abroad for instruction.

First, they point to the quality of a particular Industry Canada study from 2007 (which I have not read) as one of the only good ones around. Second, they remind us that, despite some of its fundamental flaws, the proposed Copyright Modernization Act (Bill C-32) in Canada introduced by the last government should be commended for its path-breaking "user created content" (UCC) and "parody" exceptions that allow people to make mash-ups and funnies for personal and non-commercial use.

The fact that Bill C-32 did not require ISPs and/or search engines to take down content after receiving complaints of copyright infringement is another strong point, although all major ISPs in Canada have provisions in their acceptable use policies indicating that they reserve the right to do this all the same.

These were significant advances in Canada, and the Brits would like to have them - and more - as their own.

To read the full post, which runs a little longer, please visit Dwayne's blog, Mediamorphis

Dwayne Winseck is a communications professor at the School of Journalism and Communication, Carleton University in Ottawa. Prof. Winseck been researching and writing about media, telecoms and the Internet in one way or another for nearly 20 years. You can read more comment on his blog, Mediamorphis . His column will appear every second Tuesday.

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