Wednesday - 17 September 2014

The champion of repro

25 August 2012Written by Ivan Macquisten

COMMENT: The ongoing crisis at the heart of government is becoming a national disease as a proposed change in copyright law illustrates, says Ivan Macquisten

Barely a day goes by, at the moment, without a new scandal breaking over government contracts, ministerial incompetence, bungling and worse by banks, or, closer to home, hacking and corruption among the Fourth Estate.

Goodness knows how many broadcast hours and column inches have been devoted to the themes of outrage and disbelief as the pendulum of blame swings one way then the other.

Righteous indignation is the fuel that feeds this obsession in the United Kingdom, and there is no doubt that those looking on enjoy the instant gratification - schadenfreude, the Germans know how to do words - triggered by our national pastime of knocking the mighty off their pedestals. There can be little more thrilling entertainment than watching a seemingly overpaid captain of industry squealing like a stuck pig in front of whichever Select Committee in the House of Commons finds itself wielding the trusty spear of sanctimony.

I find myself reflecting with mixed feelings on all of this.

Short-term entertainment it may be and some pretty shocking things have certainly gone on - the incidence of deliberate and cynical exploitation perhaps more shocking than the incompetence - but there could be less pleasant long-term consequences resulting from this orgy of self flagellation.

The Americans, for instance, at least as guilty on Wall Street of sharp practice and corruption as their City of London counterparts, are making far less noise about it and are doubtless looking on with glee as, on this side of the Pond, we go to increasing lengths to undermine confidence in our banking and national institutions as part of the grand exposé.

If the British have ever had an asset that everyone else would like to bottle and take home with them, it has been that Imperial sense of fair play, honesty and balance glued together by an unequalled legal system. If we lose that - and never has the baby been more at risk than in this current bathplug-pulling exercise - New York, Frankfurt and the world's other leading financial centres will be the ones to clean up.

It's as though our sense of fair play has become so skewed that, in an almost unconscious effort of overcompensation, we go out of our way to do ourselves down when attempting to balance our domestic interests with those of other countries.

This has been most clearly evident in recent years in our relationship with the European Union, initially with regards the Common Agricultural Policy, fishing quotas and weights and measures, and now with what can only be dubbed Harmonisation Creep, as we adopt increasingly baffling Brussels directives, such as the Artist's Resale Right (see ATGs passim), which appear to instil anything but harmony in either the extent of their controls or the spirit in which they are introduced.

It is in considering these measures and the British psyche - specifically the spirit of Whitehall - in its approach to them that one becomes acutely aware of the stand-off between incompetence and the paranoia of self abasement.

In my formative years, it was instilled in me to respect and naturally defer to those in positions of authority. Head teachers, policemen, maiden aunts - all had an air of self-assured certainty about The Way Things Should Be.

Now, however, as almost every policy decision is kicked into the long grass of a Public Inquiry/Royal Commission/Judicial Review (please circle as appropriate), it strikes me that too many people in positions of public power spend so much of their time looking over their shoulders to see who is going to stab them in the back that they fail to spot the spiked pit of dithering compromise and placemanship in front of them.

So it was that I recently found myself in the unexpected role as champion of the replica furniture - repro to you and me -industry, whose members (manufacturers, importers and retailers) could soon find themselves out of work as the result of the latest EU harmonisation exercise.

Repealing Section 52 of the Copyright, Designs & Patents Act 1988 will extend copyright on designs mass produced on an industrial basis from the current 25 years to the 70 years after death enjoyed by artists and musicians.

Fair enough, even if I can't see how that will make a great deal of difference to new designs, as Sir Terence Conran suggests.

However, as with extending the Artist's Resale Right to the estates of dead artists, it is the retrospective element of repealing Section 52 that has been causing trouble. By reviving copyrights that expired more than 25 but less than 70 years ago, businesses legitimately producing replica furniture based on those designs will no longer be able to do so without a licence from the newly enfranchised copyright holders.

It is possible to go on forever arguing the moral rights and wrongs of the position in which this proposed law change leaves these businesses, but they are firms that have legitimately invested in moulds, manufacturing processes, staff and other areas, while paying taxes and complying with the law. Now, through no fault of their own, they stand to see all of it sacrificed on the altar of EU harmonisation, with the inevitable fall-out on the Welfare State.

There is no guarantee that they will be able to secure affordable licences to continue as they are - in fact most I have spoken to deem it improbable - so the spectre of the dole queue beckons.

The one crumb of comfort in such circumstances is that, on Government orders, the Civil Service in the form of the Intellectual Property Office has to conduct a formal Impact Assessment of the proposed changes.

Her Majesty's Government Impact Assessment Guidance, published in August 2011 sets out in detail the purposes of such assessments, the manner in which they should be conducted, the rigour with which questions should be answered and the minimum requirements relating to areas such as consultation and analysis.

All very reassuring.

Which makes the resulting report in this case all the more execrable.

Most starkly, for what is a ministerial sign-off of a stage two Final proposal/Enactment stage Impact Assessment, the responsible minister deems the report "a fair and reasonable view of the expected costs, benefits and impact of the policy", yet no figures are given whatsoever in assessing those costs or the impact on the businesses of the replica furniture industry.

There is a simple reason for this: as I understand it, not a single individual or business in the sector was consulted in drawing up the Impact Assessment.

The Regulatory Policy Committee, which has the job of scrutinising Impact Assessments before they can be adopted, has passed this one as fit for purpose but noted: "The IA acknowledges that the proposal is likely to create additional costs for some UK businesses, particularly those that copy designs without licences. Given that no attempt has been made to monetise the additional costs and benefits of the proposal, on grounds of proportionality and lack of data, the IA should provide a more detailed qualitative assessment of the likely overall net impact on the UK economy."

So you have a minister who signs off a report as "a fair and reasonable view of the expected costs, benefits and impact of the policy" when the reviewing committee of that report concludes that "no attempt has been made to monetise" those costs or their impact.

Bear in mind, also, that the Impact Assessment acknowledges the pre-eminence of the replica furniture industry in considering this law change, which in my mind would make them the very 'stakeholders' that should be consulted under the Government's guidelines, even at the minimum requirement level of proportionality.

Yet the first these firms were aware of the Repeal of Section 52, let alone had contact with Whitehall over the issue, was after the Impact Assessment had already been signed off.

Apparently, the lack of a recognised trade body had made it impossible for the IPO to contact the industry.

Tell you what, though, tap the words "Replica" and "Furniture" into Google and in two or three seconds the names of those companies will appear on your computer screen. Then it's just a matter of a quick phone call.

Proportionality? Rigour?

My old head teachers and those maiden aunts would have something to say about all this.

A "full description of costs and benefits" is deemed by the Government's guidelines to be "a minimum requirement" and should apply "in all cases".

A detailed report on those costs, commissioned independently by the replica furniture industry, now exists. Let's see how much their impact is taken into consideration under the orders of the Regulatory Policy Committee in determining the terms of the transitional period set aside for firms to adapt once the legislation passes into law.

Hopefully they will do a better job than they have done with the Artist's Resale Right.

You guessed it, it's the same bunch.

NOTE: this article was first published in ATG 2054

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