miscellaneous factZ – The online home of Rufus Pollock

This Thursday (11th March) I’m speaking at the Forum Virium’s Open Up the City event in Helsinki.

This year their focus is on “open data, design, interfaces and innovation” and I’m speaking under the title “Open Data: What, Why, How?”.

I was recently asked to put together a short document outlining my main policy recommendations in the area of “innovation, creativity and IP”. Below is what I prepared.

General IP Policy

Recommendation: IP policy, and more generally innovation policy, should aim at the improvement of the overall welfare of UK society and citizens and not just at promoting innovation and creativity

Innovation is, of course, a major factor in the improvement of societal welfare — but not the only factor, access to the fruits of that innovation is also important.

IP rights are monopolies and such monopolies when over-extended do harm rather than good. The provision of IP rights must balance the promotion of innovation and creativity with the need for adequate access to the results of those efforts both by consumers and those who would seek to innovate and create by building upon them. A policy which aims purely at maximizing innovation, via the use of IP rights, will almost certainly be detrimental to societal welfare, since it will ignore the negative consequences of extending IP on access to innovation and knowledge. As such, IP policy is about having “enough, but not too much”.

This basic point is often overlooked. To help minimize the risk of this occurring in future it is suggested that this basic purpose — of promoting the welfare of UK citizens — be explicitly embedded within the goals of organisations and departments tasked with handling policies related to innovation and IP.

Recommendation: Move away from a focus on intellectual property to look at innovation and information policy more widely

IP rights are but one tool for promoting innovation and often a rather limited one. The focus should be on the general problem — promoting societal welfare through innovation and access to innovation — not on one particular solution to that problem.

Provision and Pricing of Public Section Information

Background

Public sector information (PSI) is information held by a public sector organisation, for example a government department or, more generally, any entity which is majority owned and/or controlled by government. Classic examples, of public sector information in most countries would include, among many others: geospatial data, meteorological information and official statistics.

While much of the data or information used in our society is supplied from outside the public sector, compared to other parts of the economy, the public sector plays an unusually prominent role. In many key areas, a public sector organization may be the only, or one among very few, sources of the particular information it provides (e.g. for geospatial and meteorological information). As such, the policies adopted regarding maintenance, access and re-use of PSI can have a very significant impact on the economy and society more widely.

Funding for public sector information can come from three basic sources: government, ‘updaters’ (those who update or register information) and ‘users’ (those who want to access and use it). Policy-makers control the funding model by setting charges to external groups (’updaters’ or ‘users’) and committing to make up any shortfall (or receive any surplus) that results. Much of the debate focuses on whether ‘users’ should pay charges sufficient to cover most costs (average cost pricing) or whether they should be given marginal cost access — which equates to free when the information is digital. However, this should not lead us to neglect the third source of funding via charges for ‘updates’.

Policy-makers must also to concern themselves with the regulatory structure in which public sector information holders operate. The need to provide government funding can raise major commitment questions while the fact that many public sector information holders are the sole source of the information they supply raise serious competition and efficiency issues.

Recommendation: Make digital, non-personal, upstream PSI available at marginal cost (zero)

The case for pricing public sector information to users at marginal cost (equal to zero for digital data) is very strong for a number of complementary reasons. First, the distortionary costs of average rather than marginal cost pricing are likely to be high. Second, the case for hard budget constraints to ensure efficient provision and induce innovative product development is weak. As such, digital upstream public sector information is best funded out of a combination of ‘updater’ fees and direct government contributions with users permitted free and open access. Appropriately managed and regulated, this model offers major societal benefits from increased provision and access to information-based services while imposing a very limited funding burden upon government.

Recommendation: Regulation should be transparent, independent and empowered. For every public sector information holder there should be a single, clear, source of regulatory authority and responsibility, and this ‘regulator’ should be largely independent of government.

This is essential if any pricing-policy is to work well and is especially important for marginal-cost pricing where the Government may be providing direct funding to the information holder. Policy-makers around the world have had substantial experience in recent years with designing these kinds of regulatory systems and this is, therefore, not an issue that should be especially difficult to address.

Copyright Term

Background

The optimal term of copyright has been a very live policy issue over the last decade. Recently, in the European Union, and especially in the UK, there has been much debate over whether to extend the term of copyright in sound recordings from its current 50 years.

The basic trade-off inherent in copyright is a simple one. On the one hand, increasing copyright yields benefits by stimulating the creation of new works but, on the other hand, it reduces access to existing works (the welfare ‘deadweight’ loss). Choosing the optimal term, that is the length of protection, presents these two countervailing forces particularly starkly. By extending the term of protection, the owners of copyrights receive revenue for a little longer. Anticipating this, creators of work which were nearly, but not quite, profitable under the existing term will now produce work, and this work will generate welfare for society both now and in the future. At the same time, the increase in term applies to all works including existing ones — those created under the term of copyright before extension. Extending term on these works prolongs the copyright monopoly and therefore reduces welfare by hindering access to, and reuse of, these works.

Recommendation: Reduce Copyright Term – And Certainly Do Not Extend It

Current copyright term is significantly over-extended. Calculations performed in the course of my own work indicate that optimal copyright term is likely around 15 years and almost certainly below 40 (the breadth of the estimates here are a direct reflection of the existing data limitations but this upper bound is still (far) below existing terms).

Even a simple present-value calculation would indicate that the incentives for creativity today offered by extra term 50 years or more in the future are negligible — while the effect on access to knowledge can be very substantial, especially when term extensions are applied retrospectively (as they almost always are).

It is also noteworthy that recent extensions, such as that for authorial copyright in the US (the CTEA) and the proposed extension of recording copyright in the EU, have been opposed well-nigh unanimously by academic economists and other IP scholars. Policy-making in this area should be evidence-based and designed to promote the broader welfare of society as a whole. Policies that appear to reflect nothing more than special-interest lobbying will only perpetuate the “marked lack of public legitimacy” which the Gowers report lamented, discouraging those who wish to contribute constructively to future Government policy-making in these areas, and making enforcement ever harder — effective enforcement, after all, depends on consent borne of respect as well as obedience coerced through punishment.

The lead article of Prospect Magazine’s February issue is a piece by by James Crabtree and Tom Chatfield entitled “Mashing the State”. It’s an in-depth look at the recent launch of data.gov.uk and its place in the wider context of government policy in relation to information — as well as information’s relation to governance (that “mashing” of the state …).

Where Does My Money Go gets a mention as does the “Cambridge” paper on pricing models at trading funds.

The other day I posted up some work-in-progress on the subject of patterns of knowledge production.

That material is still in a fairly preliminary state. However, my decision to release it it in this form was a conscious decision and part of an ongoing attempt on my part to practice a more open “release early, release often” approach to research.

In doing this I’m drawing direct inspiration from the open source and open notebook (science) communities and seeking to engage in what might be termed open notebook social science!

I think most researchers (including myself) feel a reluctance to put out material that isn’t at a reasonable level of maturity. While there are some good reasons for this, I think the main motivations are less positive, and are primarily to do with fear: be it of criticism or that your ideas are “taken” by others. While such fears can have some basis, it seems to me the benefits of an open approach — in terms of visibility, dissemination, and potential for collaboration — significantly outweigh any of the associated risks.

Over the last year, I’ve already been making some effort to move in this direction but from this point on I’m aiming to do this more thoroughly and methodically. A first step in this will be to put all the “patterns” and data online.

There’s an interesting 6 month fellowship at OPSI for work on economics of public sector information being funded by ESRC and National Archives. Deadline for applications is 6th August:

Valuing information: an economic analysis of public sector information and its re-use

Length of Fellowship: Six months

Proposed start date: Autumn 2009

Applications to be submitted as soon as possible (and by 6 August)

Location of Fellowship: The National Archives’ sites (Central London and Kew)

As part of its Placement Fellowship Scheme, the Economic and Social Research Council (ESRC) and The National Archives welcome applications from academic economists interested in working in a research capacity in the Office of Public Sector Information (OPSI). OPSI is part of The National Archives, a member of the Ministry of Justice family, working to set standards, deliver access and encourage the re-use of PSI.

The Placement Fellowship Scheme encourages social science researchers to spend time within a partner organisation to undertake policy relevant research and to develop the research skills of partner employees. The Fellowship will be jointly funded by the ESRC and OPSI while the Fellow remains employed by his or her institution.

See the document below for further details on the Placement Fellowship: http://www.nationalarchives.gov.uk/documents/esrc-placement-fellowship-june-09.pdf

Patricia Akester, a colleague of mine in the Centre for Intellectual Property and Information Law has just published the results of her recent research in the form of a 208 page report entitled Technological accommodation of conflicts between freedom of expression and DRM: the first empirical assessment.

There has been a lot of debate as to whether DRM/TPM can be used to go ‘beyond copyright’ and restrict legitimate uses of copyrighted material but little empirical work. Patricia’s work is therefore very valuable in providing the first systematic empirical data that we can use to assess what is going on. Here I’ll let her conclusions speak for herself but I strongly encourage readers to take a look at the study itself via the above link:

[From p. 99-100] This project looked at the impact of DRM on the ability of users to take advantage of certain exceptions to copyright. Based on a series of interviews with key organisations and individuals, involved in the use of copyright material and the development and deployment of DRM, this study examined how these issues are working out in practice. While the nightmarish vision of digital lock up has not materialised, this survey concluded, nevertheless , that significant problems do exist, and others can readily be foreseen:

1. Although DRM has not impacted on many acts permitted by law, certain permitted acts are being adversely affected by the use of DRM;
2. This is in spite of the existence of technological solutions (enabling partitioning and authentication of users. to accommodate those permitted acts (privileged exceptions.;
3. Beneficiaries of privileged exceptions who have been prevented from carrying out those permitted acts (because of the employment of DRM. have not used the complaints mechanism set out in UK law;
4. Article 6(4. of the Information Society Directive put an onus on content owners to accommodate privileged exceptions voluntarily. Voluntary measures have emerged in the publishing field, but not all content owners are ready to act unless they are told to do so by regulatory authorities.

These four conclusions will be explained in more detail and this will be followed by proposed solutions and recommendations.

Yesterday, the European Parliament voted on the term extension proposal.

Unfortunately though opposition was substantial it was not enough to prevent the modified (70-year) extension passing:

• Amendment in favour of the rejection: 222 IN FAVOUR, 370 AGAINST, 10 ABSTENTION
• Key amendment to ensure benefits only to performers: rejected (no roll-call vote so numbers unknown)
• All other good amendments (no ex-post, lifetime of performer only): rejected (~150 in favour 400 against)

Final vote: 317 in favour 178 against 37 abstention

Though this is a depressing result this is not yet the end of the matter by any means: the Council has not yet resolved its position and there is a possibility of a second reading.

The level of opposition was also impressive given that there was strong support for the extension not only from the rapporteur (Mr Crowley), but also from the main political groupings (EPP and PSE) led by their shadow rapporteurs Mr Toubon and Ms Gill respectively (on a fairly obscure issue such as this most MEPs will have little time to scrutinize the matter and will usually follow the “party line” as determined by the party rapporteur and coordinator for that dossier).

The Government announced last summer a further review of how trading funds supply PSI. The results of this review had been expected with the budget.

However, instead of the results of a review, trading funds were included in the report of the Operational Efficiency Programme in the section on “Asset management and sales” in the “final report”. Box 3A p.41 summarized the trading fund assessment exercise:

The first phase of the Trading Fund Assessment considered how a number of Government businesses could open up the information they create or hold as a result of carrying out their core public duties. The businesses were Met Office, Land Registry, Ordnance Survey, Companies House, Driver and Vehicle Licensing Agency and UK Hydrographic Office.

…

The Assessment identified key principles of good practice relating to information produced by all Trading Funds. These principles are:

• information easily available – where possible at low or marginal cost;
• clear and transparent pricing structures for the information, with different parts of the business accounted for separately;
• simple and transparent licences to facilitate the re-use of information for purposes other than that for which it was originally created; and
• clearly and independently defined – with input from customers and stakeholders – core purposes (“public tasks”) of the organisations.

The Office of Public Sector Information will provide enhanced oversight and governance to ensure application of these principles across the Trading Funds that create significant amounts of information.

A new business strategy for Ordnance Survey has been developed (see Box 3.H) which also will ensure easier and simpler access to high-quality information. Further work on the future business plans and models for specific Trading Funds – as well as consideration of the effectiveness of the Trading Fund model – will now be incorporated into the Operational Efficiency Programme.

So what we have is:

• A vague (”where possible”) commitment to “low or marginal cost” pricing but with “low” undefined — thereby leaving plenty of ‘wiggle room’. In any case the main PSI trading funds are explicitly excepted from this it seems — see below.
• Some centralization of oversight in OPSI (though not clear what power OPSI will have)
• Public tasks that are clearly and independently defined (though not clear who ensures independence)
• More pricing transparency within trading funds (though again little detail as to how this will be managed or enforced)

There were separate, specific, assessments for 3 of the trading funds mentioned in Box 3A: the Land Registry (box 3.E p.45), the Met Office (box 3.F p.46) and Ordnance Survey (box 3.H p.47). Each of these assessments consisted of just a few paragraphs (the assessments are excerpted in full below).

The Land Registry and Met Office assessments were, in essence, “pats on the back” with clear endorsements of their current operational model — albeit with an encouragement to expand commercial operations and be more efficient. Pricing policies weren’t mentioned.

For Ordnance Survey the tone was slightly different with a stated need for the OS to be “more customer-focused and commercially driven”. However, again there was no mention at all of pricing policies.

Where was the assessment of marginal cost pricing (or other pricing model) for “raw” bulk data — the recommended option from the Cambridge study (of which I was a co-author)? Where the detailed discussion of the regulatory model that needs to put in place to ensure that the system works well? Entirely absent! This is truly disappointing and one can only feel that the a serious opportunity has been missed here.

Trading Fund Assessments from the OEP Report

Box 3.E Land Registry

Land Registry maintains and develops a stable and effective land registration system throughout England and Wales, providing the cornerstone for the creation and free movement of interests in land. Giving a state-backed security for title to registered estates and interests in land for the whole of England and Wales, and ready access to up-to-date and guaranteed land information, enables confident dealings in property and security of title.

In addition, Land Registry produces property price reports and delivers a range of non- statutory added-value products and services. Land Registry is committed to providing high quality, cost-effective services which are delivered promptly to all customers. A review of the business model was undertaken as part of the OEP. This concluded that in light of current market conditions and recognising the need to retain responsibility for the creation, recording and guaranteeing of title to land within Government, the following improvements to the operating framework of the business have been identified and will be delivered;

• realising significant efficiency savings through a programme which includes estate and operational rationalisation and market testing of support functions that will result in a more streamlined, resourceful organisation;
• developing opportunities for the provision of wider commercial services and products;
• identifying synergies with the functions and data requirements of other public sector bodies with a view to achieving efficiency improvements through greater collaboration; and
• exploring opportunities to accelerate these initiatives through joint ventures and/or outsourcing of activities to third party providers.

Box 3.F Met Office

The Met Office is a world-leading provider of weather forecasts and climate change modelling and advice to the general public, specialist customers throughout the public sector and an increasing number of private sector customers.

It is essential that the Met Office’s unified approach to short, medium and long term forecasting and climate modelling, which is the most efficient and sophisticated in the world, is preserved. The Met Office also performs a number of key government roles, especially in international data collaboration and UK representation. In order to maintain the quality of its services it will require long-term investment and the freedom to develop its operations. There remains potential to expand commercial operations at the Met Office beyond those already provided, possibly through the introduction of private capital in some areas.

Over the coming months the project team will:

• work closely with the MOD as the owner department and HM Treasury to identify improvements to its business model, ownership structure and financial framework in order to reduce the administrative burden, maximise its development and to fully exploit the market opportunities open to it;
• work with other public sector bodies to achieve efficiency improvements through greater collaboration or transfer of functions;
• explore increased commercial activities, for example weather warnings to industry and helping business understand the impact of climate change;
• seek opportunities for private sector partners to develop specific services to complement the Met Office’s business; and
• maximise operational freedoms and reduce bureaucracy in the interface between the Met Office and the MOD.

Box 3.H: Ordnance Survey

Ordnance Survey collects, maintains and publishes high quality and up-to-date geographical information for the whole of Great Britain. Ordnance Survey provides data and services to customers both directly and indirectly through its network of commercial partners. The Government is committed to stimulating innovation in the geographical information market, increasing competition where it would be beneficial to consumers and to making geographical data and services more easily available.

The OEP has concluded so far that Ordnance Survey needs to be more customer-focused and commercially driven. The Government is therefore publishing a new commercial strategy for the Ordnance Survey on their website. The new strategy balances the requirement to maintain the highest quality standards with the need to significantly enhance ease of access to geographic data and services for both commercial and non-commercial use.

The new strategy seeks to equip Ordnance Survey to thrive in and better support competition and innovation in a wider geographical information market that is being transformed by advances in technology. It is a significant and ambitious programme of change. The Government has set key milestones for delivery in 6 and 12 months’ time and beyond, as well as a process for independent review and challenge of progress. If sufficient progress is not made to promote competition and innovation in these timescales, the Government will consider further reforms. Opportunities to accelerate the delivery of initiatives through introducing further commercial experience and capabilities will be fully explored over the coming year.

Tomorrow, the European Parliament will vote on the issue of copyright term extension for sound recordings, known in Parliamentese as “the Crowley Report (A6-0070/2009) on the Term of protection of copyright and related rights” (Mr Brian Crowley is the rapporteur for this report and a strong supporter of the extension).

Extending term would be a tragic mistake and a blatant example of special-interest lobbying winning out of the interests of society as a whole.

Let us therefore hope that the proposal is rejected.

That’s the line being by some right-thinking MEPs including Eva Lichtenberger, Greens, Sharon Bowles, ALDE, Andrew Duff, ALDE, Zuzana Roithova, EPP, Christofer Fjellner, EPP, Guy Bono, PSE who have put forward a rejection amendment (see their excellent justification below). But they need all the support they can get and remember: it is never too late to act.

Rejection Amendment Justification

The draft Directive is poorly conceived and disproportionate. The Commission claims that the measure is needed in order to benefit poor performers. However, the proposed regulation and procedure is complicated and over-bureaucratic. The biggest beneficiaries will be the four largest record companies. Individual performers will only receive very small amounts each.

Performers could be helped much more effectively by regulating copyright contracts and collecting societies, by setting up appropriate social security and insurance schemes, and by reconsidering remuneration rights and license tariffs.

The draft Directive leaves a large number of questions unanswered. Additional impact assessments are needed to see which measures are best suited to help those performers really in need, to limit the negative impact on consumers and jobs, and to establish if regulation is best done at state or EU level. In these circumstances, it is not wise to proceed to make the long-term permanent changes proposed.

Some of the particular problems are:

The extension of copyright to 95 or even 70 years will increase the revenue of trust funds of deceased performers instead of living performers.

Many performers cannot produce proof for the performances they participated in during the past decades. It then becomes difficult to assess their rights to payments.

The proposed regulation could cause legal uncertainty for all existing audiovisual productions as it will be unclear if the material used is subject to sound copyright.

There is a risk that all material that is not commercially viable will not be marketed by the copyright owners and will become inaccessible for public use.

Small record companies currently publishing copyright-free material risk going bankrupt.

Yesterday (Monday) The Times published an open letter signed by many of the leading UK academics concerned with the issue of copyright term extension.

The letter, of which I was a signatory, is focused on the change in the UK government’s position (from one of opposition to a term extension to, it appears, one of allowing an extension “perhaps to 70 years”). However, it is noteworthy that this is only one in a long line of well-nigh universal opposition among scholars to this proposal to extend copyright term.

For example, last April a joint letter was sent to the Commission signed by more than 30 of the most eminent European (and a few US) economists who have worked on intellectual property issues (including several Nobel prize winners, the Presidents of the EEA and RES, etc). The letter made very clear that term extension was considered to be a serious mistake (you can find a cached copy of this letter online here). More recently — only two weeks ago — the main European centres of IP law issued a statement (addendum) reiterating their concerns and calling for a rejection of the current proposal.

Despite this universal opposition from IP experts the Commission put forward a proposal last July to extend term from 50 to 95 years (retrospectively as well as prospectively). That proposal is now in the final stages of its consideration by the European Parliament and Council. We can only hope that they will understand the basic point that an extension of the form proposed must inevitably to more harm than good to the welfare of the EU and should therefore be opposed.

The Letter

Dear Minister,

Open Letter re. Proposed Copyright Term Extension for Sound Recordings

We are writing because of the sudden, and unexplained, change of Government position in relation to copyright term extension for sound recordings.

In 2006, the Government received the recommendations of an independent and comprehensive review of intellectual property policy, commissioned by the then Chancellor Gordon Brown. The review, led by Andrew Gowers (a former editor of the Financial Times) took “an evidence-based approach to its policy analysis”, supplementing a formal call for evidence with commissioned external expertise.

The review examined several extension options, including the increase to 70 years, and explicitly rejected extension as being a bad deal for the UK in cultural and economic terms. The Government, led by the Treasury which was then headed by Gordon Brown, clearly supported this view.

What then occasions a sudden volte-face two years later and only a few weeks after statements from the Department for Innovation, Universities and Skills (DIUS) indicating support for the original decision? We are not aware of any new evidence that has come to light, and the only independent study available since then, that of Professor Hugenholtz at the University of Amsterdam, has also been highly critical of extension.

There has been some talk of ‘moral arguments’ for extension but it is hard to discern a compelling ‘moral’ case for a proposal whose prime effect is to benefit major label shareholders and a few, already highly successful, artists while imposing significantly greater costs on new creators, the general listening public and the custodians of our cultural heritage.

As Gowers concluded, and the Government has until now consistently reaffirmed, policy-making in this area should be evidence-based and designed to promote the broader welfare of society as a whole. Policies that appear to reflect nothing more than lobbying will only perpetuate the “marked lack of public legitimacy” which the Gowers report lamented — and discourage those who wish to contribute constructively to future Government policy-making in these areas. We therefore call on the Government to present any evidence that has led to this change of policy.

Yours Sincerely,

Professor Lionel Bently, and Dr Rufus Pollock, Centre for Intellectual Property and Information Law, University of Cambridge

Professor Martin Kretschmer, and Professor Ruth Towse, Centre for Intellectual Property Policy & Management, Bournemouth University

Professor Nicholas Cook, AHRC Research Centre for the History and Analysis of Recorded Music, Royal Holloway, University of London

Professor P.A. David, Emeritus Professor of Economics and Economic History, University of Oxford

Professor Graeme Dinwoodie, Chair in Intellectual Property Law, Queen Mary College, University of London

Professor Johanna Gibson, Director Queen Mary Intellectual Property Research Institute, Queen Mary College, University of London

Professor John Kay, Chair, British Academy Copyright Review

Professor Paul Klemperer, Edgeworth Professor of Economics, University of Oxford

Professor Hector MacQueen, and Professor Charlotte Waelde, SCRIPT/AHRC Centre Intellectual Property & Technology Law, University of Edinburgh

Professor David M Newbery, Professor of Economics, University of Cambridge

Dr Mark Percival, Queen Margaret University, Edinburgh, Chair, International Association for the Study of Popular Music (UK/IRL)

Dr Martin Cloonan, Senior Lecturer, University of Glasgow, ex-Chair, International Association for the Study of Popular Music (UK/IRL)

Professor Danny Quah, Professor of Economics, London School of Economics

Professor David Vaver, former Reuters Professor of IP and IP Law and Director of the Intellectual Property Research Centre, University of Oxford

Richard Chesser, Chair, Trade and Copyright Committee, International Association of Music Librarians (UK/IRL)