The Closing of the Net  "original and valuable"  Times Higher Education

2nd post in a series on the government's response to Hargreaves

Will Hargreaves call for better evidence in IP policy-making result in more questioning of rights-holder data? Or more surveillance?

The Hargreaves Review of Intellectual Property and Growth was praised for demanding better ‘evidence’ in IP policy-making. In particular, Hargreaves was very critical of rights-holder substitution rates in making claims for lost revenue.  However, the government’s official response to Hargreaves, quietly

issued at the beginning of the summer holiday season, emerged with a  classic civil service dodge. Whilst Hargreaves’ criticism has pushed the government to acknowlege a failing in this area, the response documents suggest that the government will dolittle about it.

Statements like this suggest a civil service deliberately leading policy-makers towards a foregone conclusion which suits themselves:  

The Government therefore accepts the spirit of the Review’s argument that a combination of education, effective markets, appropriate enforcement and modern laws is likely to be most effective in preserving the value of IPRs for their owners, subject to the test of evidence about what is actually effective.

De-coding this, accepting the spirit is one thing, but until there is policy document or other edict, it means nothing. 'Appropriate enforcement and modern laws' and 'preserving value for IPR owners' means the Digital Economy Act, and new web blocking measures.

In fact,  we in the UK already do  have a system of evidence-based policy-making which the civil service are obligated to follow in their justification for new policy decisions. It’s just that they may, if they determine it appropriate, ignore the evidence. And they are under no obligation to seek contradictory evidence to that presented to them, as this excerpt shows:

 "As indicated by the Hargreaves Review of Intellectual Property and Growth, there is insufficient reliable evidence to justify a major shift of the UK’s approach to IP. We will continue to seek additional evidence to inform priorities for enforcement and determine the most effective techniques for it. But there are some areas where action is needed in advance of evidence, or in order to obtain it."

There are more worrying  outcomes from the government's  response to Hargreaves.  If you read the documents  carefully, it would seem that the government intends to respond to Hargreaves’ criticism  with increased electronic surveillance. Moreover, the response documents seem to suggest that – far from searching for alternative evidence – the government will lean even more heavily on the rights-holders to supply it – in the spirit of public spending cuts. Here is another key exerpt:

"IP  rightsholders retain a critical role, perhaps even more so due to the pressures on public sector spending cuts. There is a clear economic incentive on them … Market monitoring, intelligence collection and sharing and more general support like forensics provide much needed support for enforcement agencies, especially in view of constraints on public finances and demands from other priority enforcement areas. …In addition, they have a key role to play in providing evidence to governments and enforcement agencies."

 The response document calls on Ofcom to push ahead with ‘establishing benchmarks and data trends in online infringement of copyright’.  An Ofcom presentation from last year explains how Ofcom will approach this - deep packet inspection was one of the technologies it considered for market monitoring :




PLEASE CITE AS: Monica Horten (2011) Hargreaves response: what is effective evidence? 1 September 2011 . This article is licensed under a Creative Commons License for non-commercial purposes, with the author attributed.







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