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