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The Meaning of the Adelphi Charter

Under the sponsorship of the Royal Society for the Encouragement of Arts, Manufactures and Commerce, known as RSA, a group of high-profile academicians and activists recently released something called the “Adelphi Charter on creativity, innovation and intellectual property.”

From the Charter’s homepage:

The Charter sets out new principles for copyrights and patents, and calls on governments to apply a new public interest test.

It promotes a new, fair, user-friendly and efficient way of handing out intellectual property rights in the 21st century.

The Charter has been written by an international group of artists, scientists, lawyers, politicians, economists, academics and business experts.

Full text, with comments, below the fold. Also below the fold: What does this mean, and why should anyone pay attention?

The fact of the Charter means, I think, that it’s time that serious people pay attention to debates about the role and scope of intellectual property rights and obligations, debates that (up to now) have been confined largely, though hardly exclusively, to the academy, public interest organizations, and the blogosphere. When The Economist weighs in with guarded support, then it’s time for the money to pay attention. This is unquestionably a good thing, and potentially, it’s an important thing.

The text of the Charter, however, is more exhortation than blueprint. It’s a bit of everything and nothing all at once, and as such it runs dual risks. Either it is deemed to resemble a 21st century Declaration of the Independence of Cyberspace, a manifesto for the converted, or it reflects the biases of the reader, a salve for the conscience. It’s always the other guy, or the other country, that’s causing problems. For policymakers, lawyers, judges and interested laypeople — which is to say, everyone — it needs some concreteness, and for that, it needs translation. I add comments out of sympathy, not cynicism. It is important to understand the strengths and weaknesses of the Charter, even if its weaknesses are the product of the compromises that committee work brings.

Humanity’s capacity to generate new ideas and knowledge is its greatest asset. It is the source of art, science, innovation and economic development. Without it, individuals and societies stagnate.

Inspiring or meaningless? A little of both. The “it” here is presumably “humanity’s capacity to generate new ideas and knowledge.” The problem is that “individuals and societies” have never been without “it,” so we don’t really know. We assume. It’s a fair assumption; what would life and living be without the ability to exercise the imagination? But this begs the question. How do IP rights interfere with that ability?

This creative imagination requires access to the ideas, learning and culture of others, past and present.

As Merton would note, Bernard of Chartres makes an appearance. So far, so good.

Human rights call on us to ensure that everyone can create, access, use and share information and knowledge, enabling individuals, communities and societies to achieve their full potential.

Let’s be specific: access to knowledge and information should be recognized as a fundamental human right.

Creativity and investment should be recognised and rewarded. The purpose of intellectual property law (such as copyright and patents) should be, now as it was in the past, to ensure both the sharing of knowledge and the rewarding of innovation.

This combines the Anglo-American utilitarian tradition and the European moral rights tradition. Recognize and reward investment (but by whom?), and creativity as well. But what happens when those values conflict?

The expansion in the law’s breadth, scope and term over the last 30 years has resulted in an intellectual property regime which is radically out of line with modern technological, economic and social trends. This threatens the chain of creativity and innovation on which we and future generations depend.

The case could be made that this expansion lies precisely follows modern social, economic, and technological trends. IP regimes may lag development, rather than lead it. If the former is the case, then perhaps the Charter addresses the wrong subject matter. So I would recast the argument as follows: IP regimes should lag technological, economic and social trends, and should lag them more dramatically than it has done over the last 30 years. To do otherwise threatens to disrupt society’s ability to benefit from and build on those trends.

We call upon governments and the international community to adopt these principles.

Governments and the international community, so far, have shown relatively little interest in this sort of thing. Prospects for generating prompt support seem slim. Should we be calling on authors, inventors, publishers, broadcasters, universities, technology companies, educators, and consumers to embrace the Charter?

Laws regulating intellectual property must serve as means of achieving creative, social and economic ends and not as ends in themselves.

Be specific.

These laws and regulations must serve, and never overturn, the basic human rights to health, education, employment and cultural life.

Again, cultural life as a basic human — not merely economic — right.

The public interest requires a balance between the public domain and private rights. It also requires a balance between the free competition that is essential for economic vitality and the monopoly rights granted by intellectual property laws.

And when one must choose between basic human rights and the free competition that is essential for economic vitality, as one must sometimes choose, basic human rights should and do take precedence. Now the question is the scope of the right — is the right nationally-based, or supra-national? And what is the relevant time frame?

Intellectual property protection must not be extended to abstract ideas, facts or data.
Patents must not be extended over mathematical models, scientific theories, computer code, methods for teaching, business processes, methods of medical diagnosis, therapy or surgery.

Both are true, I believe, to protect human rights, including health, education, and culture — rather than (merely) to promote economic development.

Copyright and patents must be limited in time and their terms must not extend beyond what is proportionate and necessary.

“Proportionate and necessary” to whom?

Government must facilitate a wide range of policies to stimulate access and innovation, including non-proprietary models such as open source software licensing and open access to scientific literature.
Intellectual property laws must take account of developing countries’ social and economic circumstances.

Particularly where human rights are at stake, it is important to identify alternative means of encouraging and supporting the production of creative and innovative work.

In making decisions about intellectual property law, governments should adhere to these rules:
* There must be an automatic presumption against creating new areas of intellectual property protection, extending existing privileges or extending the duration of rights.

* The burden of proof in such cases must lie on the advocates of change.

* Change must be allowed only if a rigorous analysis clearly demonstrates that it will promote people’s basic rights and economic well-being.

* Throughout, there should be wide public consultation and a comprehensive, objective and transparent assessment of public benefits and detriments.

What is the baseline? Do we accept current IP regimes and impose the burden of proof on departures from the present state of affairs? Or, if the current state is out of balance, do we impose higher burdens on proposed extensions of current law and lesser burdens (or no burdens) on limitations of current law?

Watch to see whether and where we see echoes of the Charter in national and international policy debates.

UPDATE: Should have linked to Copyfight’s coverage.