The Difference between Copyright & Patents Period of Protection is Obscene

The Difference between Copyright & Patents Period of Protection is Obscene

Among the UK creative heroes of our age must surely include Sir Paul McCartney  and Sir James Dyson.  Both have unquestionable talent. Both have contributed enormously through their creativity to the economy and society (and still are). Both had to work very hard indeed to turn their creativity into a profitable product before earning a penny. We are therefore left with as fair a comparison as it is possible to construct between how society rewards its deserving artists compared with its deserving engineers. The intellectual property of  Sir Paul is protected by copyright and until recently enjoyed an amazing 50 years of protection. In contrast the intellectual property of Sir James is covered by patents and only gets a mere 20 years of protection and at least a quarter of that typically gets eroded in turning a patent into a marketable product… a time lag that the song writers (or recording artists) usually do not have.

The European Commission has now added insult to injury this year by introducing an amendment to Directive 2006/116/EC on the term of Protection of Copyright that extended the 50 years for musical copyright to a Biblical 70 years…a whole life-time of reward… whilst still leaving the technical inventor losing their protection after a mere 20 years!  Why this difference in time period of protection?  There is clearly a case to answer.

Relatively few people understand Intellectual Property Rights but the main underpinning principle is actually quite simple…it is called “fairness”.

The time limit determines when a creative outcome changes from the exclusive property of the creator to become public property that we all own and can freely use. It a balance between fair reward and allowing ideas to become a part of the common heritage of mankind.

On this measure it cannot be right that the man struggling in his bedroom with his guitar to create a winning song should enjoy 70 years of reward for his efforts and the man struggling in his garden shed with a technical invention gets only 20 years. The difference is obscene.

Either the general public are thieves of time…stealing from patent owners what should be rightfully theirs for another 50 years or Copyright owners are thieves of time stealing from us what should be freely ours after 20 years.

Some may argue that this difference of time periods is justified. So the argument runs… it is far more important to society that technical ideas are freed up relatively early to allow others to copy and improve upon them whereas songs are a more frivolous product and there is less impact on society if locked away for longer.

There are three arguments against this line of defense of the status quo. First, the creative industries are now just as important as say the vacuum cleaner industry and creative people could do a lot with say the Beetle songs in all manner of creative products such as cartoons… just as the rivals to Dyson could use cyclonic separation in their new vacuum cleaner products. Second if it is that important to society to free up technical ideas after 20 years this could be achieved by moderating the licensing regulations after say 20 years to free up use but still ensured a fair royalty is paid to technical inventors (to match that of musicians). The third argument is that this should just be about fairness…however inconvenient to Dyson’s industrial rivals.

There is also a strong strategic reason for the Western economies for extending the period of patent protection. The world trade organisation treaty has pitched the US and European relatively high labour costs against much lower labour costs of China, India and Brazil. Off-setting this has been an historic hegemony of advanced technologies coming out of the Western laboratories and companies. This has led to a complacent assumption that the West will specialise in the high value added end of the market and the emerging economies will specialise in the  low value manufacturing end of the market. But China and India in particular are advancing at spectacular speed up the advanced technology learning curve backed up by huge numbers of young talented graduates coming out of their Universities. It is much quicker to catch-up in the development of advanced technologies where the aiming point is well identified (from seeing what the West is currently producing) than to blaze a trail into the much more uncertain future through R&D programmes. The solar PV industry is a compelling example of this. Five years ago Germany was a clear global market leader in Solar PV technology. Today China is the global market leader. Europe’s R&D base is simply not dynamic enough or resourced enough to keep the European technology base ahead of the imitators…it is likely to run out of road over the next 7-10 years. Extending the period of patent protection will help to redress this imbalance between the speed of catching-up (imitating or even copying) with the much longer speed to breaking quite new ground.

The case to align the time periods of protection on moral grounds is overwhelming. This then leads onto a much more difficult issue as to whether copyright protection should be brought back to 20 years or patent protection extended to 70 years. If alignment is to ever be achieved in the real world it is likely to be based on a compromise figure somewhere between these two extremes. My straw man would  40 years as a sensible half way compromise with some slightly different status in respect of licensing the last 20 years to free up usage but still providing a fair reward for the creators.

Any idea of cutting back the period of protection for copyright is likely to outrage the powerful copyright community…but this should not be a reason for Governments to shy away from reform. The music industry are far from winning the general public over to the moral case for strengthening enforcement of copyright over the Internet. There is a widely held view that music copyright owners have been ripping off the public for years with over priced music CD’s and foot dragging (until relatively recently) in putting in place reasonably priced music down-loading sites on the Internet. In this context extending the Copyright for music from 50 to 70 years looks like an ugly case of feather bedding and probably is. That said, if fairness is the driving force, a distinction can (and should) be made in any future reform between the copyright of existing works and new works yet to come under copyright… with any shorter period of protection only applying to new works..

There  are many things wrong with Intellectual Property Right laws ranging from the ambushes regularly made on hard working technology companies by patent trolls to the current over the top behaviour of the mobile phone manufacturers. There is a case for comprehensive reform. The piece meal approach to Intellectual Property Rights by the European Union needs to give way to a genuine broad ranging reform of Intellectual Property Rights that accords comparable status between our technical heroes and song writing heroes. There should be one period of protection for all Intellectual Property Rights…we should be eliminating the current discrimination not exacerbating it…and also safeguarding the hard earned value of our technical innovation base.

 

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