Offline but mainly online, intellectual property is certainly going through a strange wave of change. Whereas intellectual property rights existed as tools of communication between producers and consumers, on the Internet they appear to be weapons against consumers. Copyrights and trademarks have become exclusive, untouchable monopolies that now prevent us from exercising our free speech; fair use is blurred with tarnishment and, more worryingly, law is now driven by unsubstantiated economic rationalizations that serve specific intellectual property interest. And, I say specific because most of these rationales are based on a dozen (if not less) rights holders who seek to implement and enforce protections that see their rights secured even at the expense of their peers – small and medium-sized rights holders, innovators and entrepreneurs.
The report, entitled “Digital Opportunity: A Review of Intellectual Property and Growth” – commonly knows as the Hargreaves report – tells the horror story of how lobbying exercised by intellectual property owners has the capacity to direct governments, their ministers and departments. Three quotes encapsulate the essence of the report:
"We urge Government to ensure that in future, policy on Intellectual Property issues is constructed on the basis of evidence, rather than weight of lobbying."
"On copyright issues, lobbying on behalf of rights owners has been more persuasive to Ministers than economic impact assessments."
"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."
The report, despite its limitation to the UK intellectual property regime, addresses an issue that represents that current status of intellectual property: trademark and copyright laws are subject to lobbying to the extent that evidence becomes redundant. Take, for example, the ICANN context and the great push towards stronger forms of intellectual property protection. Here we saw the trademark constituency lobbying to their governments and achieving to upset a process that is meant to create jobs, encourage innovation and assist competition. The creation of the new gTLDs became contingent upon trademark rights, discussions about protection and debates about the extent of it. Economics, inclusiveness and societal aspects received none or little attention, even though they actually constitute the most important aspects for a successful Internet.
But, here is the question that no one seems to be able to answer. We all expect (and at some level even understand) where the greed of intellectual property owners is coming from – but, what is it exactly that makes governments willing to contravene traditional understandings of law and to jeopardize the traditional fractions of law making? What is the bargaining chip that the trademark community held upon the US and the UK governments that made them so eagerly support trademark owners in the new gTLD process?
The simple answer appears to be lobbying – a strong amount of political and economic pressure that finds governments willing to risk justice. This lobbying is one-layered: it reaches the top directly and positions itself as the master pulling the strings. It is control – control over the information, control over the ideas and control over the consumers (users).
So, the report is very accurate when it requests evidence, because lack of evidence leads to lack of process.