Thursday, August 21, 2008

Commission IP proposals are evidence-free

Bernt HugenholzIntellectual property policy can be a frustrating field. Despite endless debate, analysis of evidence and careful reviews, officials and legislators often go their own sweet way in deciding policy on (to pick one recent example) the term of copyright.

Bernt Hugenholtz, a distinguished IP law professor who directs the University of Amsterdam's Institute for Information Law, has just sent a blistering letter to the president of the Commission about their latest "Intellectual Property package":

We are, of course, well aware that several conclusions of the IViR studies do not agree with the policy choices underlying the Commission's proposals. And we are certainly not so naïve as to expect that the recommendations of an academic institution such as ours, however well researched and conceived they may be, will find their way into the Commission's policies in undiluted form. What we would expect however is that our work, which was expressly commissioned by the policy unit in charge of these proposals, be given the appropriate consideration by the Commission and be duly referenced in its policy documents, in particular wherever the Commission's policy choices depart from our studies' main recommendations.

As you are certainly aware, one of the aims of the 'Better Regulation' policy that is part of the Lisbon agenda is to increase the transparency of the EU legislative process. By wilfully ignoring scientific analysis and evidence that was made available to the Commission upon its own initiative, the Commission's recent Intellectual Property package does not live up to this ambition. Indeed, the Commission's obscuration of the IViR studies and its failure to confront the critical arguments made therein seem to reveal an intention to mislead the Council and the Parliament, as well as the citizens of the European Union.

In doing so the Commission reinforces the suspicion, already widely held by the public at large, that its policies are less the product of a rational decision-making process than of lobbying by stakeholders. This is troublesome not only in the light of the current crisis of faith as regards the European lawmaking institutions, but also — and particularly so — in view of European citizens' increasingly critical attitudes towards intellectual property law.

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