By Nick Phillips, Partner & Head of IT & IP Department at Barlow Robbins LLP
On 3 August 2011 Vince Cable announced the coalition Government response to the Hargreaves Review of Intellectual Property and Growth (IP Review) that was delivered in May 2011. The Government broadly accepted the 10 recommendations set out in the IP Review and laid the foundations for how it would implement each once and the time frames for Government action.
Published along side were the Government plans to address its International IP Strategy and its IP Crime Strategy.
The thrust of the IP Review was around copyright law with cursory nod to patents and design rights. Trade Mark law will be reviewed separately. The Government will look at whether patents are being used to stifle innovation and resist granting patent protection to new areas without a sound business justification. It will also look at whether the UK requires the ‘unregistered’ design right based on research to be commissioned at the IPO.
There was also the headline grabbing proposal to remove the technical prohibition on format shifting (eg copying a music CD to your digital music player).
One would think that this was the only outcome of the IP Review given its prominence in the news reportage when in fact legalising this format shifting was just one of four new copyright exceptions that the Government plans to introduce. The others are a wide non-commercial research exception to cover text and data mining, allowing parody (finally!) and expanding library archiving exceptions.
The Government will also look at securing further ‘flexibilities’ at an EU level to ensure our laws will keep up with technological advancement.
Having said that, these exceptions hardly came as surprise and I'm surprised it took this long to deal with, at least, the private copying exception.
The crucial piece in the announcement yesterday was the plan to deal with access to copyright material by creating a digital copyright exchange. This should have received more attention than it did as it is a proposal, endorsed by the Government to create an “amazon.com” website for copyright licensing. The sentiment is good: allow easier and cheaper access to copyright works for a multitude of uses but the practice may be more difficult. The proposals may well offend the Berne Convention (one of the international treaties that makes copyright work globally and in practical terms England creating this exchange alone without the global community is unlikely to succeed or at best be prohibitively expensive to administer and enforce.
The Government is pressing on and feels that with the right sticks and carrots rights holders will participate. The government is currently consulting on how it is going to work but options would appear to include a model based on a stock exchange or futures/options trading system or expanding the role of the various collecting societies which are at least reasonably well versed in how to make rights licensing work globally.
The Government is going to ensure that all future policy making is based on open and transparent evidence to ensure lobbying is backed by sound justification and it also plans to try to balance the rights of content owners with content consumers. It will support efforts to develop legitimate digital markets and at the same time give rights owners’ greater protections and easier access to justice. Know one can be sure where this fine line should be drawn and finding it is made even more difficult by both sides holding such extremist views on the issues.
Vince Cable is adamant that this package of reform will inject about £8 billion pound into the economy over the next few years. Perhaps, but it will require the extreme views of the creative community and the rights holders to find that middle ground and that is something this reform struggles to do.
Nick Phillips, Partner & Head of IT & IP Department at Barlow Robbins LLP