The IPO, DCMS and bad copyright policy

Last Tuesday, Peter Wishart MP held a Westminster Hall debate about intellectual property. Much of his speech focused on what he sees as problems with the Hargreaves Review of Intellectual Property and Growth and with the IPO as a policy making body. I just wanted to pick up on one issue now, related to evidence and the proper development of IP policy.

In Peter Wishart’s speech, he praised the work and modus operandi of a Department that has admitted repeatedly to having no evidence of the issue it is responsible (fyi, this is the Department for Culture, Media and Sport). And the Intellectual Property Office, which has called for robust evidence to be the basis of policy and is running an open consultation soliciting the views and evidence of all stakeholders, was criticised for laundering dodgy evidence in support of its ideas. 

It’s worth comparing the IPO and DCMS on the issue of evidence and good policy making.

The IPO have recently asked that evidence be the driver of policy, and are engaged in asking stakeholders for clear, open and robust evidence regarding the proposals made by Professor Hargreaves. They are holding consultation events with the full range of ‘stakeholders’ invited. I have been present at two of these so far, and rights holders and representative bodies were well represented. The consultation runs until March 21st. The review explicitly asks for open and clear evidence of the issues at hand. If you don’t like the ideas or disagree with the evidence presented, there is a clear mechanism to show them why.

The DCMS told us (here and here) last year that they had no evidence to support the Digital Economy Act except for that provided to them by industry (evidence that was not available publicly or analysed or assessed by the Department – as one can tell from the Impact Assessments). With the Digital Economy Act, they said they were making ‘the best brick with the straw available.’ And they admitted they have no evidence of their own now to support or steer the discussions about copyright enforcement that they are currently engaged in. 

We managed to establish that these discussions, which are hosted by the Minister Ed Vaizey and involve rights holders and various intermediaries (Internet Service Providers and other Internet companies) were happening only through letters to the Minister and Freedom of Information request.

The situation improved slightly as the year wore on. After some public pressure, Consumer Focus were allowed in to the meetings. At the end of the year, Open Rights Group were invited to a broader roundtable discussion at which our problems were raised. But proposals made to search engines about how they should be forced to regulate search results, made in a separate private meeting, were not shared until the very end of the year – and we had to ask twice. Ongoing discussions are not proceeding in a transparent or open fashion. We understand further talks between rights holders and search engines will take place soon.

This is not a Department whose default setting is open. Have a look around for information from the DCMS about these roundtables. Let us know if you find anything substantive that doesn’t involve using the Freedom of Information Act.

DCMS says that they are merely encouraging voluntary agreements between industries, but that legislation will proceed if no agreement is forthcoming. But, as we’ve said before, in the absence of evidence or analysis, they have not said how they will judge when legislation is necessary, and what the substance of that legislation should be.

So to caricature the two departments: one is asking for evidence and consulting widely and openly. One has spent the past few years consulting narrowly, opaquely, and with no evidence or analysis to speak of.

The IPO come under fire in Peter Wishart’s speech for being sloppy with evidence and ignoring the creative industries. DCMS’ proposals are to be ‘got on with’. He calls the IPO ‘a bureaucratic front to devalue the people whom it is supposed to support’ which the Government must ‘get to grips with’. 

That is slightly strange. The issue of policy making for copyright involves managing a complex mix of evidence, principle and opinion. Disagreement, and the management and channeling of that disagreement in the formulation of policy, are two separate things. Whatever position one takes on the substance of this debate about IP, there is a right way and a wrong way to make public policy.  It has to be democratically legitimate, open, transparent and involve proper debate. Over the past 12 months, the IPO has beaten DCMS hands down on that metric. 

DCMS will soon publish the Communications Green Paper. Hopefully the process it kicks off will mark an improvement in how they handle policy affecting the Internet.

Finally, Consumer Focus produced a great briefing for MPs ahead of the Westminster Hall debate, which you can read here. COADEC have a summary of the debate here.