I have finally managed to read the Adelphi Charter on Creativity, Innovation and Intellectual Property (formerly known as the IP Charter). The Charter was drafted by a distinguished panel of IP law experts, creators and activists (including Professor Hector MacQueen). Some other people assisted with the research process, such as fellow blogger Abbe at IPEdinburgh (her comment about it here).
I am terribly impressed by how relevant and concise it all is. Take for example article 9:
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.
What? Policy based on actual evidence? You must be joking! Seriously though, I believe that this is one of the most important points in the Charter given the amount of inflated claims by all camps involved in the modern IP debate. Change must come only when necessary, not just because content owners want to continue lining their pockets at the expense of the public domain.
4 Comments
David BB · October 19, 2005 at 3:04 am
Yes, clause 9 is very important but then the charter ignores the idea of empirical evidence by stating in (4) Intellectual property protection must not be extended to abstract ideas, facts or data….(6) Copyrights must be limited in time and their terms must not extend beyond what is proportionate and necessary. Er… empirical evidence for the statements? Nope…
Andres Guadamuz · October 20, 2005 at 12:44 am
Hi David,I would agree that 6 is arguable, as one could discuss what is "proportionate", but I would disagree about 4, as there is enough evidence against the use of intellectual property protection on raw data, facts and abstract ideas (as in mathematical formulae and algorithms). In fact, there is strong evidence that the protection of data is not necessary, as evidenced by the fact that Europe has a useless database right, while American database companies do very well without database protection.
David BB · October 20, 2005 at 5:10 am
Just to play devil's advocate a little…There has been no conclusive empirical evidence to my knowledge that has shown that extending IPR to abstract ideas, data, facts, methods etc would necessarily be an *economic* bad thing. The arguments are usually framed around constitutional, moral or ethical arguments not the economics. Clearly we would have to protect these 'things' and then see how well they perform against the criteria of whether or not they generated more wealth/information/public good… but I don't believe this has actually been done. The only 'evidence' is economic models… Regarding the European database legislation, I don't really think that is a good argument as the European's don't exactly have any strong database companies to begin with… so its not a convincing case study, IMHO.In any case, I was pointing out the tautology involved in recommending that empirical evidence should be used… when the arguments are not purely empirical but also cultural, social, political and (sometimes) moral… and they haven't based their position on empirical studies either… ;-)David
Andres Guadamuz · October 22, 2005 at 4:33 am
Hi David,The statement in s9 is not a tautology because it is directed at governments, it clearly states that "In making decisions about intellectual property law, governments should adhere to these rules…" The Charter is not a government policy document.As to databases, the reason why the right does not work in Europe is not relevant to the size of the market, but the three recent ECJ rulings against the database right. However, the evidence remains that the absence of database protection has not hindered the database industry, hence the statements remain valid IMO. Thanks for the comments, nice to hear from you again 🙂