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The UK’s IP (Intellectual Property) law has been knowingly out of date for many years and, as the Internet becomes of increasing importance to our day to day lives and our business practices, an overhaul of the IP laws which were first conceived several hundred years ago are well overdue. This, coupled with the forthcoming implementation of the DEA, means the Government has had little choice but to review the current legislation. It therefore called upon Professor Ian Hargreaves of Cardiff University to conduct an in depth review and last week he published his much anticipated report.

Darren Farnden, Head of Marketing

Darren Farnden, Head of Marketing

Hargreaves estimates that changes to the Intellectual Property systems could add £7.9 billion to the UK’s economy. He stated “In recent years the UK has failed to make the changes needed to modernise copyright law, for which we will pay an increasing economic price as we make our way into the third decade of the commercial internet. My recommendations are designed to enhance the economic potential of the UK’s creative industries and ensure that the emergence of high technology businesses, especially smaller businesses, in other sectors is not impeded by our IP laws.”

The report details ten key recommendations including:

– The UK should have a “Digital Copyright Exchange”, a digital market place where licences in copyright content can be readily bought and sold.

– Legislation should be introduced to permit access to orphan works where the owner cannot be traced.

– Legislation needs updating regarding what is lawful to copy. This includes format shifting (e.g. copying a file from a PC to an MP3 player) which, let’s face it, the majority of law abiding people already do on a regular basis; and also parody, non-commercial research and library archiving.

– The Government’s IP policy needs to be based more closely on economic evidence and should pay more attention to the impact on consumers and non-rights holders. (Finally some common sense!)

– Changes to the powers of the IPO (Intellectual Property Office) to enable the IP framework to adapt to future economic and technological changes.

Unsurprisingly, especially if you are a regular reader of our DEA related articles, we applaud Professor Hargreaves for his point about the Government considering the impact on non-rights holders more carefully. This is something we have been calling out for over and over again with regards to the DEA. Too often has the Government been swayed by the claims of the media and entertainment industries that they are “losing millions” and that they need to be protected albeit to the detriment of ISPs and more importantly consumers. The current state of the DEA is clear proof of this approach.

Also unsurprisingly is the positive nature in which this ‘common sense’ approach has been accepted by most of the parties affected. The Open Right Group stated “after an initial reading, it looks very promising indeed and congratulations are due to Professor Hargreaves and his team for putting it together. It should add up to a bold design manual for a 21st century IP policy.”

The only real criticism we have found regarding this report are a few claims that it doesn’t go far enough, in particular because it doesn’t support the US concept of ‘fair use’. However many within the IP industry were not expecting a ‘fair use’ style approach to be included because of our close ties with Europe and the effect of European law on our own laws. Such an approach would be very difficult to implement in conjunction with current EU legislation. However, within the review Hargreaves does explain that the UK will need to strengthen and review its international priorities and suggests an immediate priority of achieving a unified EU patent court and system.

Neil Allcock, a partner at Deloitte who specialises in licensing, said the suggestions are “pretty easy to say but very hard to do” and will require the Government’s full backing.

He continued to explain how the creative industries will react:  “they will say it is a good idea [to create this one-stop shop online for rights] but that it is very hard to implement. We need to do this on a global basis otherwise it will not work – and that is very difficult to achieve…I doubt the report will give practical advice on how to achieve this.”

So will this review affect the DEA?

Shadow Culture Secretary Ivan Lewis has already warned the “elephant in the room in relation to this report was the last government’s Digital Economy Act, several of whose sections, in particular those relating to online copyright infringement are currently subject to judicial review”

However point 8 in the review states: “Enforcement of IP rights. The Government should pursue an integrated approach based upon enforcement, education and, crucially, measures to strengthen and grow legitimate markets in copyright and other IP protected fields. When the enforcement regime set out in the DEA becomes operational next year its impact should be carefully monitored and compared with experience in other countries, in order to provide the insight needed to adjust enforcement mechanisms as market conditions evolve. This is urgent and Ofcom should not wait until then to establish its benchmarks and begin building data on trends. In order to support copyright holders in enforcing their rights the Government should introduce a small claims track for low monetary value IP claims in the Patents County Court.”

We agree with Professor Hargreaves that the effectiveness of the DEA’s ‘enforcement regime’, or ‘three strikes policy’ as we have previously referred to it, needs to be closely monitored and compared with other countries’ activities; and where relevant adjusted to market conditions. This monitoring and benchmarking could hopefully provide the evidence we need to support our ongoing argument that this is not an appropriate solution and one that will not be effective in the fight against copyright.

In conclusion, it’s very early days and only time will tell if this promising review will have any real effect on the more disappointing DEA but Professor Hargreaves has at least gone some way to restoring the balance between protecting IP and considering consumers and other parties – a balance that was so badly damaged by the DEA. His approach to considering the needs of the consumers and not focusing on the claims of the rights holders is certainly a promising one. All we can do is hope that his mentality will rub off on the Government and they will adopt this across the board.

Updated: 17th June 2011

It looks like the Government are planning to implement the suggestions proposed by Professor Hargreaves in his recent review into the UK’s intellectual property laws. Professor Hargreaves stated: “It’s possible there is enough strategic shared interests here that ministers will be able to go through with [the review], and the indications I have are that ministers are expecting to carry this forward, although not necessarily in every detail…My level of confidence is better than it was when I started the Review and before it was published. Since publication it seems to have been broadly welcomed so I remain confident, but I don’t take [its adoption] for granted.”

We remain optimistic that the Government will listen to Professor Hargreaves and make the necessary changes to the current outdated laws. In particular we hope they take his advice regarding the basing of their policies on economic evidence and paying more attention to the impact on consumers and non-rights holders.

Have your say!

What do you think about Professor Hargreaves’ report into modernising the UK’s IP laws? Do you think they will address the current problems or do you think they need to go further? Let us know your thoughts by leaving us a comment below.

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