Is the system of intellectual property (IP) that we had in place at the end of the 20th century the most appropriate one for the 21st century?

That is the question John Howkins raised at a forum on creative industries and IPR protection during Shanghai International Creative Industry Week which ended on December 6.

Howkins brands the question "the elephant in the room,"something very big and important but so embarrassing that everyone pretends it isn't there.

A leading British expert in the creative industries, Howkins has 30 years experience in the film and TV industries, and is well versed in the need for effective IP laws.

It is universally accepted that IP laws provide a way to register ownership and protect property.

But, as Howkins points out, IP laws have another purpose, one he believes is widely underestimated.

"They should also enable people to have access to what has been created," Howkins says.

These two purposes appear contradictory.

According to Howkins, major industrial companies, led by US, European and Japanese entertainment, publishing, design, pharmaceutical and engineering industries, all put heavy emphasis on the first purpose.

Western governments, which are keen to make their national economies competitive and to protect jobs, also believe IP assets must be protected as much as possible and at all costs, Howkins says.

"To them, the more IP, the better."

But Howkins prefers another approach, which puts access above protection.

To him, access to existing ideas, knowledge and data is the starting point of all new ideas.

"New ideas are two old ideas meeting together," he says. "The creative industry is the reuse of ideas."

Historically, Europe, the United States and Japan industrialized when their patent and copyright laws were weak and enforcement was patchy, he says.

Likewise, many developing countries would benefit from similarly weak IP as they look to industrialize.

Major steps forward continue to be made by those who choose not to seek IP protection, for example, free and open source software, the World Wide Web, the Global Positioning System and the map of the human genome.

"My argument is that IP certainly offers incentives and rewards but may do so at the cost of slowing down and inhibiting future work," Howkins says.

There are three spheres of people working in the creative industries that Howkins says require differentiation.

The business of producing and distributing commercial work, often requiring very large financial investments, will continue and must be protected.

But the two other spheres are different.

One sphere of people, who often work collaboratively, are willing for others to use their work for non-commercial uses.

An even larger group of people are exploring ideas, sounds and images and creating work with little thought of claiming any exclusive rights to it.

"These three spheres, together, must be the basis for IP in the 21st century,"

he says.

"We need a system which maximizes access, which is in everyone's interests, and also enables rights-holders to have a reasonable reward from their work."

He proposes IP laws be used as a means of regulating the creative economy.

"Laws on IP should not be seen as ends in themselves but as means of achieving social, cultural and economic goals," he says.

By Howins' estimate, the creative economy was worth US$2.2 trillion in 2001, US$2.9 trillion this year and will be worth US$4.1 trillion in 2010.

He predicts average annual growth of 5 per cent globally.

What should China do?

Howkins first visited China in 1979, when the concept of private ownership and private property rights was scarcely known.

He is happy to see the progress China has made, but believes the future purpose of IP should be to balance public ownership with private monopolies.

As a major importer of creative products, Howkins says. China has to strike a balance between weak copyright laws and the increased import of creative products.

"You won't import creative goods until you have a law," he tells China Business Weekly. "China must have a strict law, especially the enforcement of the law at local levels."

While protecting creative industries, he cautions China not to prevent public access.

"China should strike a balance between how much you allow copyright holders to hold exclusive rights and how you allow others to access those rights," he says.

A difficult trick to pull off.

He advises the implementation of a programme of education to enhance people's awareness of IP.

"Copyrights are so important that they have to be understood by teachers, researchers and businessmen," he explains.

The government should lead by example, he says, and ensure ministers of education, science and finance, know the value of copyrights.

He also proposes a free IPR Advisory Service be opened to people from all walks of life.

"The future of China lies in the brain," he says.

To encourage creative production, Howkins says China should offer creators places where rent is affordable, such as old houses and warehouses.

The most important thing, he says, is to provide a free environment where artists can create at will.

"Intellectual freedom is a necessity," he says.

He also advises that the government recognize the risks and time-consuming traits of creative industries.

"Creative production should be allowed to fail," he says.

Manufacturing is based on repetition, but creative industries are based on imagination, new ideas and trial and error, he says.

Although creative companies are usually small, Howkins says they drive supporting companies providing employment to many.

"Young people should move into the creative industries," he says.

"I believe in 20 or 30 years, creative industries will be a major source of employment in China."

In 2003, about 12.7 million people worked in creative industries in China, creating an added value of 357.7 billion yuan. About half of that value came from manufacturing and retailing.

It takes long time to see a mature creative economy, "China should sow the seeds now," stresses Howkins.

(China Daily 12/26/2005 page10)