Ofcom bows to Google lobby

How Google owned our regulator

The rubber-stamping of Ian Hargreaves "IP Review" and other news yesterday represents a lobbying triumph for Google, and shows the creative industries they need to learn some lessons.

Yesterday Ofcom pleased its political masters by repealing laws passed by Parliament. It may have repealed a dodgy law, but that's beside the point: it's not how our system is supposed to work. No matter how dodgy a law may be, it is not a quango's job to repeal it. It's the job of legislators. And a powerful regulator should be independent, and not heel to its political masters – although anyone who followed the history of the regulator will permit themselves a hollow cackle at that principle.

Ofcom repealed Sections 17 and 18 of the Digital Economy Act by expressing no more than an opinion: the justification to support that opinion is absent from its report. Ofcom could have set out its case in terms of explaining the legal framework, for example, but it didn't. It could have argued the costs and benefits of each approach to web-blocking – but it didn't, it hadn't even attempted to do that kind of empirical research.

Instead, on page 43, we learn that: "It is our current belief that the blocking of discrete URLs, or web addresses, is not practical or desirable as a primary approach." What's practical is not defined, what's "desirable" is well beyond Ofcom's remit.

Now, I'm on the record as being opposed to web-blocking – for a variety of reasons. In a healthy market, with bags of choice, nobody needs to go to http://dodgysite.wz. And in a healthy market, if you were a serial user of http://dodgysite.wz, you'd eventually expect to get dinged – just as you'd get dinged for driving up and down the motorways at 150mph. A healthy market has some kind of backstop of enforcement for the few determined piss-takers or joy-riders.

And poll after poll shows this is the rational, popular view. There are plenty of people who feel uncomfortable about it all, which is understandable. The focus on enforcement first makes the copyright industries look lazy and backward-looking. But when you peel back all the arguments, only a tiny handful of cranks and obsessive nutters openly state that a creator's rights should not be enforced online. Saying you support creators' rights in principle but then recoiling in horror when they are exercised in practice is not a supportable, long-term position. It's like saying you "support gay marriage" but want to forbid gay couples from ever getting married. So in short, I believe the copyright-holders are entitled to have some tools for enforcement, as a backstop, and these must include something far, far smarter than website-blocking.

But back to Ofcom. Imagine the uproar if a quango had interposed itself to block significant primary legislation: Britain's entry into the Common Market for example, or the minimum wage. All are quite complicated issues, after all. The blame isn't entirely Ofcom's; the regulator was permitted to do this because ministers wanted to find a way to bury the Sections without Parliament formally repealing them. Again, this is dishonest, and not the way laws are made or unmade. Ed Vaizey has been trying to get industry to agree to self-regulation which would allow him to announce their imminent repeal (most likely in the next Communications Act).

But Ofcom has embarrassed everyone by producing a report in which the rationale plainly has no supporting evidence – and this has exposed some quite ugly backroom politics, and lack of accountability. Not wishing to pour oil onto burning water, at all, we must note that Ofcom derives its revenues from Big Telco. So we can be sure this isn't the last you'll hear of the story. Google's open door into government will now be under greater scrutiny than ever.

But Ofcom is only part of a bigger picture.

Quite ironically, the Hargreaves review had a few things to say about lobbying.

"Lobbying is a feature of all political systems and as a way of informing and organising debate it brings many benefits. In the case of IP policy and specifically copyright policy, however, there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy outcomes," it states.

The prejudices are clear, here. When creative industries knock on Minister's door to make their case, they are "lobbying". When Google does it, it's bringing rainbows, freedom, and bottles of unicorn's tears. Ministers seem oblivious to accusations that it's too cosy to the American giant. They were oblivious to ties to Murdoch, too, I recall, for quite a long time.

What the "Google Review" has achieved is to highlight the prejudices of our permanent bureaucracy, which like academia, detests creators' rights. It's a standing joke that the intellectual property part of the civil service is a bit like the Church of England, where it's a handicap to believe in a supreme deity, and quite a help if you're an atheist. To get on in the IP establishment, you have to loathe the creative industries, and seek to weaken creators' rights at every opportunity. You must insist they are oppressive, anachronistic, stifling... in fact, nothing at all to do with Britain's really quite successful IP businesses, which range from games to music to TV formats. One of our most senior civil servants has privately stated that copyright is like taxation: the more you do away with them, the more economic benefits you get. But this is a complete inversion of reality.

Hargreaves delivered an intellectually sloppy piece of work, which boils down to a collection of lobbyist's whinges and an angry academic's mad rant. The passages on parody and collection societies came straight from the Chocolate Factory. Many of the figures touted as economic benefits have simply been plucked out of thin air. (The main one was chosen because it is one half of 1 percent of GDP – that's scientific).

Elsewhere, Hargreaves makes recommendations that fail to acknowledge well-known potential problems. (I highlighted one here) A competent IP review would have proposed format shifting – everyone wants it, and it's long overdue – and also the various methods of complying with EU law to ensure it's legal – and compensation is paid. It is instead going to pretend it doesn't have to pay compensation, which the European Court of Justice is quite clear about. So the government will either wake up in time and do nothing, or get mown down in an expensive European court defeat. All this is known about. The previous government looked at format-shifting, and parody, three years ago. If a simpleton like me can see this looming, why weren't ministers warned? Because their civil servants didn't warn them, perhaps? Now, why would that be?

Answers on a postcard, please: along with bottles of joy and unicorn's tears. Perhaps you can also riddle me this:

The Conservatives came to power vowing to abolish Ofcom, and declaring war on what they saw as Leftish academic poseurs, and business-hostile bureaucrats. They now seem to be at the mercy of all three. How on Earth did that happen?

Andrew warmly welcomes mail – the old-fashioned way.

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