"The world's great free economies make great play of the importance of IP rights to their domestic prosperity. IP rights protect investment, create jobs, empower creators, facilitate the delivery of deliverables, enhance communication, and enrich the leisure and entertainment sectors. With the exception of minor political entities such as the anarchists, the extreme socialist left, and the Pirate Party—whose positions are consonant with a lower level of IP protection or even its abolition—there is general consensus among political leaders that IP is somehow a good thing. Since debate on IP protection does not split along party lines, it is unsurprising that the subject is rarely, if ever, raised in electoral manifestos or debated between political rivals.
The absence of debate may be viewed as a good thing, but it is also a bad one. Since party leaders do not take issue with each other's positions on patentability, parallel trade, peer-to-peer file sharing, or design poaching, there is never any real need for them to master the subjects. This is in sharp contrast with topics such as defence spending, development aid, and foreign policy, which impinge little if at all on the daily life of the voter, as well as subjects of more immediate relevance to the electorate such as the environment, education, and public health. Yet IP touches us all every day: the TV and radio programmes we consume to the food in our shops, the medicines in our bathroom cabinets, the downloads on our portable entertainment units, and even the clothes on our backs, IP is everywhere.
Curiously, given the importance of IP and its pervasive quality, the subject is not only off the political agenda—it is almost kept shrouded from any sort of contemplation by the electoral community at large. Thus in the eyes of the governments of some of the world's most open and democratic jurisdictions, and their main trading partners, IP enforcement is believed to be so sensitive an issue that it has been necessary to negotiate the terms of the Anti Counterfeiting Trade Agreement (ACTA) behind closed doors, lest the momentum of the negotiations be stalled by public awareness.
With IP off the political agenda, the degree of coverage to which IP issues are treated by the mass media is low and generally trivial. Disputes are newsworthy because they concern popular works such as The Da Vinci Code, A Whiter Shade of Pale, or the Harry Potter series rather than on account of their legal significance. The other way IP issues get to press is when celebrities are involved. Thus Beyoncé's allegedly pirated bikini, the loss of sponsorships and endorsements by golfer Tiger Woods and any number of kiss-and-tell indiscretions in which confidentiality arguments are balanced against free speech will be known to many sentient voters, though they may not easily discern the IP issues among the generous cleavages and contrived sound-bites that frame the text.
Many people criticize IP laws, either in principle (because they believe them to be inherently wrong) or in practice (because they accept the principle but object to the manner of its execution). It would be unkind to respond to their critical analysis with the refrain: ‘Well, that's what Parliament enacted and Parliament must be taken to represent the will of the people in any duly constituted democracy’. However, it would not be unfair to remind both critics and supporters of IP that the path to better laws is the achievement of a better understanding of them. Just as in the case of fiscal policy or regulation of the financial sector, the system itself is not easy to grasp; yet we cannot expect either our political leaders or their watchdog, the media, to grasp it for us.
Sadly for those of us who believe that IP is a force for good and that a better understanding of how it works will lead to better laws, there are no votes in IP because it is a subject which is not in general a political issue—and which is likely to remain so for the foreseeable future".
Next month's JIPLP now available online
The July 2010 issue of the Journal of Intellectual Property Law & Practice (JIPLP) is now available to its online subscribers. You can view the contents of this issue here. The Editorial, "No votes, no idea", reads as follows: