Saturday, 21 May 2011

Hargreaves in brief

Digital Opportunity - A Review Of Intellectual Property And Growth is the title of the report published in May 2011, commissioned last year by the government from Professor Ian Hargreaves. The Government - indeed, the Prime Minister himself, launching the Review at the same time as his scheme to turn the Old Street roundabout, right by our office, into a hub for digital industries - was concerned that the current intellectual property framework did not adequately promote innovation and growth, and the Review's terms of reference reflected this: many have recognised a more general need for copyright law to be updated, but Prof Hargreaves did not have carte blanche (or the time, or the resources) to cover the whole field. So there's nothing about trade marks (except a mention of counterfeits) and little about designs (although what there is is pretty important). Harder to understand, there's no mention of open source or Creative Commons and no relevant mention of public domain (surprising, given that James Boyle was one of the panel who advised the review). That much I can work out with only the PDF reader's search function to help me - although I know I have to be careful: I asserted on Twitter that it didn't say anything about software patents - which was true, as far as it went, but it does say quite a lot about patents for computer programs.

While it was encouraging to see the Prime Minister getting to grips with this issue early in his term of office, it was hardly a new departure. The previous government commissioned a comprehensive review into our intellectual property laws,  and in December 2006 the Gowers Report made 54 recommendations many of which have not been heard of since. The government followed that up with its Digital Britain report. In the last government's final fling, that spawned the Digital Economy Act which amongst other things tries to deal with copyright infringement online. Those provisions were recently subject to a judicial review, which gave them a fairly clean bill of health.

The Hargreaves Report is 123 pages long - not much shorter than the Gowers Report , but with only 10 recommendations, which struck me at first glance as short-changing those of us who have been looking forward to seeing it. But it was a self-imposed target, and to meet it the report makes some pretty sweeping recommendations, incorporating several sub-recommendations, so perhaps there is not such a big difference in the weight of their recommendations. In summary, the recommendations are:

1 Evidence-based policy-making. The Government should ensure that as far as possible the development of the intellectual property system is driven by objective evidence.

2 International priorities. The UK must protect its interests at the international level and in in particular will have to keep an eye on what is happening in emerging economies such as China and India. The UK's  position must be based on economic evidence. The UK should also seek to get a unified EU patent court and patent system as a matter of the highest priority. It should also work to make the Patent Co-operation Treaty more effective, in particular by ensuring that international search reports carry greater weight than they sometimes do.

3 Copyright licensing. The review recommends the establishment of a cross sector Digital Copyright Exchange to facilitate access to transparent, contestable and global digital markets. The review suggests that there should be a senior figure appointed to oversee the design and implementation of the proposed exchange by the end of 2012 (yes, the ambiguity is in the Report, but I assume that's not merely the target date for the appointment). The government should support moves by the European Commission to create a framework for cross-border copyright licensing. As a major exporter of copyright works, this will bring benefits that UK.

4 Orphan works. The Review recommends that legislation should be passed to enable licensing of orphan works, establishing an extended collective licensing scheme and a clearance procedure for the use of individual works.

5 Limits to copyright. Over-regulation of activities which do not prejudice the central objective of copyright (providing incentives to creators) should be firmly resisted. The review recommends that the Government should deliver copyright exceptions at the national level, taking advantage of all the opportunities offered within the the EU legislative framework. This will include format shifting, parody, non-commercial research, and library archiving. At the EU level the UK should also promote an exception to support text mining and data analytics, as too much valuable information is locked up in databases. It should push at the EU level to develop a new copyright exception designed to make the legislative framework adaptable to new technologies.

6 Obstructions to innovation. The review recognises that the patent system can be detrimental to innovation, and identifies patent thickets as a significant problem. It recommends the government to take a leading role in promoting international efforts to cut backlogs and to manage the boom in patent applications. Steps should be taken to ensure that patents do not extend into sectors which they do not currently cover, such as non-technical computer programs and business methods, unless there is clear evidence that there will be a benefit. It should also investigate ways of dealing with patent thickets which include working at the international level to establish a fee structure set by reference to innovation and growth goals.

7 Designs. the role of intellectual property in the design industry has been neglected, and the Review suggests that in the next year the Intellectual Property Office should conduct an evidence-based assessment of the relationship between design work and innovation. It will then be better able to evaluate policy at the UK and European level.

8 Enforcement. Hargreaves recommends that the government should have an integrated approach to the enforcement of intellectual property rights, including education and measures to strengthen and "grow" (sorry, I have to make clear that's a quote - that usage really grates, and one does not grow markets like vegetables, one develops them, allows them to grow,even encourages them to do so but they grow themselves) legitimate markets in copyright and other fields. The enforcement regime of the Digital Economy Act will become operational next year and the Review recommends that its impact be carefully monitored and compared with the experience of other countries. Enforcement mechanisms may need to be adjusted as market conditions evolve. To enable rights holders to enforce their rights the government should introduce a small claims track for low value IP claims in the Patents County Court.

9 IP advice to small firms. The Review calls on the Intellectual Property Office to draw up plans to improve smaller companies' access to the IP system. This will involve giving them access to lower cost providers of integrated IP legal and commercial advice.

10 Responsiveness. Finally the Review recommends that the Intellectual Property Office should be given the necessary powers and mandate in law to ensure that it focuses on its central task of ensuring that the UK's intellectual property system promotes innovation and growth through efficient, contestable markets. Specifically, it says that the IPO should be able to issue statutory opinions where they will help to clarify copyright law.

So, quite a wide-ranging menu for the government to choose from (although I guess they shouldn't choose, they should take everything on it). Next I'll consider some of these recommendations in greater detail.

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