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Ben Adamson 7242107 Phd Thesis Final Submission Sep 2017

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Ben Adamson 7242107 Phd Thesis Final Submission Sep 2017 IP in the Corridors of Power A study of lobbying, its impact on the development of intellectual property law, and the implications for the meaning of democracy A thesis submitted to the University of Manchester for the degree of Doctor of Philosophy in the Faculty of Humanities 2017 Ben Adamson School of Law Contents Title Page 1 Contents 2 Table of Abbreviations 7 Abstract 8 Declaration 9 Copyright Statement 10 Acknowledgements 11 Chapter 1: Introduction 13 1. What is Lobbying? 15 2. Setting the Scene 16 3. Core Themes 20 3.1 A Model of Democracy 20 3.2 The Importance of Stakeholder Input 21 3.3 Equality of Access and Influence 22 4. A Matter of Method 23 4.1 Quality vs. Quantity 24 4.2 Why Case Studies? 25 4.3 Gathering Data 27 4.4 Style and Substance 28 4.5 Objectivity and Subjectivity – The Balance of Fairness 29 4.6 Questions by Design 30 4.7 Confidentiality & Anonymity 31 5. Thesis Outline 32 Chapter 2: Conceptions of Governance and Democracy: A 34 Contemporary Model of Democracy 2 1. Governance 34 1.1 Definitions of Governance 39 1.2 Complexity and Multiple Actors 45 1.3 Relationships Between Actors & Policy Networks 49 1.4 Policy Networks in the EU Context 58 1.5 Conclusions on Governance 60 2. Democracy 62 2.1 Classical Models of Democracy 63 2.2 Organisations as Citizens? 69 2.3 Pluralism 75 2.4 A Minimal Role for the State? 82 2.5 Participation By All? 84 2.6 Towards A Working Model? 88 2.7 Wealth and Equality 89 2.8 Wealth, Equality and Lobbying 97 2.9 MPs: Delegates or Trustees? 101 2.10 All Party Groups 102 2.11 Who to Lobby? 102 2.12 Opening Up Access 104 2.13 The Media 105 2.14 Digital Media and Participation 107 2.15 Concluding Remarks 110 3. Democracy in the EU Framework 112 3.1 Political Parties, National Governments, and Their Role in the 115 EU 3.2 Transparency, Accountability, and Democracy 124 3.3 Concluding Remarks: A Democratic Deficit? 128 3 4. Conclusions on Governance and Democracy: Towards A Model 129 of Democracy 5. A Model of Democracy 134 Chapter 3: Case Study I: The Hargreaves Review 136 1. Introduction 136 1.1 The Appointment of Professor Ian Hargreaves 137 1.2 The Forerunner: Gowers 138 1.3 Hargreaves’ Recommendations 139 1.4 The Respondents 141 1.5 Implementation 143 2. Perspectives on the Hargreaves Review 154 3. The Role of Private Actors in the Review 160 4. Using the Evidence 165 5. Equality of Access and Influence 168 6. Conclusions 173 Chapter 4: Case Study II: The Digital Economy Act 2010 177 1. Introduction 177 2. The Origins of the Digital Economy Act 180 2.1 Doing the Washing Up 183 3. The Digital Economy Act from the Inside 185 4. The Role of Lobbying in the Digital Economy Bill 190 4.1 The View from Westminster 190 4.2 Means of Access 201 4.3 Equality of Access and Influence 203 5. Conclusions 206 Chapter 5: Case Study III: The CII Directive 210 1. Introduction 210 4 1.1 A Brief History of Software Patenting in Europe 210 1.2 The EPO’s Desire 213 1.3 The European Commission’s Proposal 215 1.4 War, Decline and Fall 218 2. The CII Directive from the Inside 220 2.1 A Foot in Both Camps: IBM and Open Source 223 2.2 The Royalty-Free Open Source Patent Initiative 225 2.3 Interactions with Policymakers 228 2.3.1 Initech and Mr D 228 2.3.2 The FOSS Movement & Florian Mueller 231 2.3.3 Observations on the EU Lobbying Framework 237 3. The Role of Lobbying 240 3.1 Arguments, Information, and the Art of Persuasion 240 3.2 Channels of Influence 242 3.2.1 The Big Players’ Experience 243 3.2.2 Campaigning with the FOSS Community 245 4. Equality of Access and Influence 250 4.1 The Big Players 254 4.2 The Little Guy 255 5. For Whom The Bell Tolls 257 5.1 Risk or Rejection? 260 5.2 We’re Going to Have to Kill It… 261 6. All That For That… 264 7. Conclusions 266 Chapter 6: Conclusions, Final Thoughts, and Suggestions for Future 268 Research 5 1. Core Themes 268 1.1 A Model of Democracy 269 1.2 The Importance of Stakeholder Input 270 1.3 Equality of Access and Influence 271 2. Suggestions for Future Research 273 3. Final Thoughts and Contribution to Knowledge 274 Appendix 1: Interview Questions 276 Bibliography 288 Word Count: 90,776 6 Table of Abbreviations ACTA Anti Counterfeiting Trade Agreement ALDE Alliance of Liberals and Democrats for Europe APG All Party Group BPI British Recorded Music Industry (formerly British Phonographic Industry) CJEU Court of Justice of the European Union DEA Digital Economy Act DRM Digital Rights Management EP European Parliament EPC European Patent Convention EPO European Patent Organisation EPP-ED European People’s Party-European Democrats FFII Foundation for a Free Information Infrastructure FOSS Free and Open Source Software IFPI International Federation of the Phonographic Industry IPO Intellectual Property Office ISP Internet Service Provider JURI European Parliament Committee on Legal Affairs OIN Open Innovation Network PCRC House of Commons Political and Constitutional Reform Committee TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights USPTO United States Patent and Trademark Office VPN Virtual Private Network WIPO World Intellectual Property Organization 7 Abstract The University of Manchester Ben Adamson Doctor of Philosophy IP in the Corridors of Power: A study of lobbying, its impact on the development of intellectual property law, and the implications for the meaning of democracy Monday 18th September 2017 This thesis will demonstrate that, while generally seen as a non-democratic activity, lobbying should in fact be viewed as an important part of democratic policymaking, providing valuable input into law and policy, particularly in areas where expertise is at a premium. Constructing a theoretical model of democracy and using the field of intellectual property as a focal point, the role of private actors will be examined across a series of case studies: the 2011 Hargreaves Review of Intellectual Property and Growth, the 2010 Digital Economy Act, and the proposed 2002 EU Computer Implemented Inventions Directive. Each case study is based upon a combination of secondary sources and the first-hand experiences of certain actors involved and in each case the lobbying activity is critically evaluated in light of the features and normative conditions of the democratic model. This study will ultimately show both the positive aspects and negative aspects of lobbying from a democratic viewpoint, noting that the importance of stakeholder input into the law and policy that will affect those stakeholders is essential. It will also be shown, however, that equality of access to, and influence over, policymakers is far from satisfactory and that until such inequalities can be resolved, lobbying cannot be fully justified under my model of democracy. 8 Declaration No portion of the work referred to in the thesis has been submitted in support of an application for another degree or qualification of this or any other university or other institute of learning. 9 Copyright Statement I. The author of this thesis (including any appendices and/or schedules to this thesis) owns certain copyright or related rights in it (the “Copyright”) and s/he has given The University of Manchester certain rights to use such Copyright, including for administrative purposes. II. Copies of this thesis, either in full or in extracts and whether in hard or electronic copy, may be made only in accordance with the Copyright, Designs and Patents Act 1988 (as amended) and regulations issued under it or, where appropriate, in accordance with licensing agreements which the University has from time to time. This page must form part of any such copies made. III. The ownership of certain Copyright, patents, designs, trade marks and other intellectual property (the “Intellectual Property”) and any reproductions of copyright works in the thesis, for example graphs and tables (“Reproductions”), which may be described in this thesis, may not be owned by the author and may be owned by third parties. Such Intellectual Property and Reproductions cannot and must not be made available for use without the prior written permission of the owner(s) of the relevant Intellectual Property and/or Reproductions. IV. Further information on the conditions under which disclosure, publication and commercialisation of this thesis, the Copyright and any Intellectual Property and/or Reproductions described in it may take place is available in the University IP Policy (see http://documents.manchester.ac.uk/DocuInfo.aspx?DocID=2442 0), in any relevant Thesis restriction declarations deposited in the University Library, The University Library’s regulations (see http://www.library.manchester.ac.uk/about/regulations/) and in The University’s policy on Presentation of Theses. 10 Acknowledgements First and foremost, I must thank my primary supervisor, David Booton, for his support and guidance over the course of this project. Always on hand whether for the most substantive of feedback or the most vital of reassurance, David has been invaluable and I count myself as being very lucky for having him as part of my supervisory team. My sincerest thanks also to Professor Alan Hamlin, my second supervisor until his departure from the University of Manchester in 2013, and to Dr Carolyn Abbot, who bravely stepped up to the plate as his successor. I say ‘bravely’, for Carolyn joined my team at a crucial time when the end was approaching and the tension mounting.
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