'New exceptions to copyright reflect digital age'

A number of trendy 'exceptions to copyright', additional fall-out from the Hargreaves Review, come into force today, as this Press release from the IPO (now in fact from Big Brother's GOV.UK site, which smacks of everything a Conservative or Liberal government, let alone a coalition of the two, should stand for) reminds us. To my mind it is inaccurate to call them exceptions to copyright: the Act calls them 'permitted acts', and the government should be consistent. The trouble is that there are too few lawyers among our lawmakers these days: professional politicians who have never worked in the real world deal in simple concepts (and probably struggle with more than 140 characters), not nuanced language.


The 'exceptions' do not affect the subsistence of copyright, just its enforceability: they provide defences rather than creating holes in the fabric of copyright, which remains omnivorous. It's a way of rearranging the deckchairs when the real problem is that the ship is sinking under the weight of mundane, not-original-in-the-more-appropriate-sense-of-the-word, copyright 'works'. It hits the wrong target: making 'exceptions' (especially if you wrongly apply that label to them) creates false expectations about how copyright works, especially when they are the product of special pleading.


Still, we all have to know about them (unless your interest in copyright law is limited to passing an examination in the next few days, in which case you probably need to know only the law as it stood on or about 14 February). The new regulations, which you can read by following the links, are:

• Copyright and Rights in Performances (Disability) Regulations 2014
• Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014
• Copyright (Public Administration) Regulations 2014

The Patent Office (I will continue to use its proper name) has published a series of 8 targeted guides
about what the changes mean for groups including teachers, researchers,
librarians, disability groups, artists, museums and consumers. Given that they can surely have no value in legal proceedings, and certainly do not constitute legal advice, I wish they would stop wasting public funds (even if it is not taxpayers' money) like this. It would be far, far better if they were in some way to subsidise the small businesses that need advice on these matters but cannot readily afford it (though no doubt they find it possible to afford many other less essential goods and services).


Further changes, concerning private copying and parody and quotation, remain stalled in the legislative process: a small relief, though they are only likely to be delayed, not lost.

New copyright regulations coming next year

The government has published a statement  giving details of the changes to copyright law that will come into effect in the first half of next year, mostly concerning exceptions to protection (permitted acts, as the government should call them, to be consistent with the scheme of the legislation). It mentions 'relatively small but important' changes, which will remove 'up to' 45 pages of unnecessary rules and regulations from the statute book. Unnecessary? I find it impossible to understand how legislation can be regarded as 'unnecessary'. Undesirable, obsolete, unwanted, unduly complicated, perhaps, but never unnecessary.

The changes, of course, are inspired by the Hargreaves Review, which seems to have inspired more nonsense every time I look at it. Hargreaves it was who proposed new permitted acts to enable parodists to ply their trade without fear of being sued for infringement - as if good parody needs such a privilege, and as if it did not amount to removing a perfectly legitimate revenue stream for the copyright owner. The problem is that what passes for 'creativity' these days is less about making something pretty much from scratch (of course nothing is ever completely from scratch) but reusing and adapting what others have already created. Soon there won't be anything original to be found - perhaps that will remove the need to modernise copyright law.

The problem isn't that copyright works can't be reused, the problem is that too much is protected by copyright to begin with, and it would be far more constructive to raise the threshold for protection by making the originality requirement a bit more demanding - to require true originality, rather than mere independent creation. But that's another story.

In addition to the parody thing, the legislation will make some useful changes to Chapter III of Part 1 of the much-hacked-about Copyright, Designs and Patents Act 1988. The existing permitted act for archiving and preserving will be applied to all types of media, and to museums and galleries as well as libraries and archives. There will be new rights to copy material for private use and to conduct data analysis for non-commercial research. There will also be a new permitted act to quote copyright-protected content for purposes extending beyond criticism, review or news reporting.

The Department for Business, Innovation & Skills claims that businesses stand to save more than £25 million as a result of the planned changes to copyright exceptions, which is the sort of magical figure that I cannot take without a huge pinch of salt. In the audit society, everything has to be measured and costed, and Hargreaves stressed that policy in this area must be evidence-based, but I find it hard to see how figures like this can possibly be regarded as evidence. I don't think they would satisfy any legal test by which evidence is judged. No, the fact surely is that it suits the government to encourage the sort of ripping-off that can be cloaked with the title 'parody', because it's trendy and looks as if it amounts to modernisation.

At the same time, the government is legislating to support the idea of regulating the conduct of collecting societies by means of Codes. The idea is that the collecting societies should regulate their own activities with voluntary codes, but if this does not work the Government is giving itself powers to intervene.

New Exceptions to Copyright, part II

Now the Patent Office has published a second bunch of proposals to implement the exceptions which the Hargreaves Review thought should be carved out of copyright protection:
New Exception for Data Analysis for Non-commercial Research (70Kb)
Amendments to Exceptions for Education
Amendments to Exceptions for Research, Libraries and Archives
Written comments may be made up to 2 August.

New Exceptions to Copyright

On 7 June, the Patent Office published details of the legislation that is intended to bring into force several of the copyright exceptions proposed by the Hargreaves Review. It seeks comments by 17 July. Here are links to the consultation documents:
New Exception for Private Copying
New Exception for Parody
New Exception for Quotation
Amendments to Exception for Public Administration

Evidence-based policy-making depends on the quality of the evidence

IP-watch.org gives a trailer for an interesting-sounding survey which is available only to their subscribers, of which I am not one:

Preliminary findings of a survey aimed at mapping the current prevailing ideas on intellectual property confirmed recognised trends that academics and intergovernmental IP professionals look more favourably on weaker IP protection, and traditional North-South differences toward IP rights are becoming less clear cut. It also found that policymakers tend to rely heavily on statistics from industry to help them with their decisions, whether reliable or not.

With evidence-based policy-making being so fashionable since the Hargreaves Review, this seems very timely: survey evidence of preconceptions and prejudices, combined with a reliance on what those with the biggest axes to grind say is best. This is how we got our present law on industrial designs - it has been going on that long.

More on digital copyright exchange(s) et al

This posting records - as well as my notes allow me to do so - the question and answer session that followed the IBIL Hallowe'en seminar last Wednesday. The chairman, Sir Robin Jacob, prefaced it by remarking that one effect of the hub and the Observatory would be to reduce the number of works that actually were orphans. In response to a question from the floor about the duration of copyright protection - making it shorter would remove many orphan works problems - he told the audience that the oldest work held by the British Library still protected by copyright dates from 1874 - and not long ago it had been 1862.

Sir Richard Arnold asked a question which highlighted the difference between the "limitations" approach taken in the abortive US legislation and the "permission" approach taken in the EU directive. The public sector, and public interest bodies, are the beneficiaries of the Directive: but an institution such as the British Library would find it unacceptable to do something which is unlawful, protected only by a limitation on the remedies available to the copyright owner. Better that they operate within legal permissions - or, to use the trendy phrase as Maria Martin-Prat did, "safe harbours". [I think this proposition should become known as Arnold's Principle.]

Carol Lee, a director of ALCS, was aggrieved that neither Hargreaves nor Hooper had much to say about authors. Hooper claimed that the hub would be good for the little guys, but there would be disputes, a matter being addressed by the steering group (or whatever term was used for the body dealing with implementation of the idea). The quality of data on who owns what is poor, and in the digital age there can be no excuse for this.

Shira observed that there is a list in the back of the Directive that gives an indication of where to look in the course of a diligent search, adding that had the US Copyright Office been required to produce the guidance mentioned in the abortive legislation it might have included a Google search [one might even imagine that a Google search alone could one day be considered exhaustive].

In reply to a question from Jeremy Phillips about anonymous photos of cats, Graeme made the observation that silence on the part of an author does not indicate acquiescence. Maria added that were that to be the case the directive would amount to compulsory licensing. And Richard Hooper pointed out that although it is an offence to strip out metadata, thus removing ownership information, newspapers do it all the time with images.

Google made another appearance, with someone [my notes don't record who] saying that access to authoritative ownership information is fundamental to the proper operation of their takedown procedure [and I made a mental note to check whether they had taken down something I gave them notice about a couple of days ago]. Of course (as someone else whose identity Peter failed to note said), having such an authoritative source would defeat many of the excuses and justifications for copyright infringements.

In reply to another question, Richard Hooper explained that the Hub would not be a building, just a website, and it would not compete with those who connect with it.

Tom Rivers asked about extended collective licensing, observing that an essential pre-requisite for it is collective licensing. Often, he said, people do not want to license their copyright collectively, but if they could do this they would undermine the whole idea of licensing for mass digitisation. Maria pointed out that extended collective licensing (ECL, a new abbreviation that is becoming common currency) allows an opt-out for copyright owners, which is what distinguishes it from compulsory licensing.

A propos something which I didn't note, two final comments from members of the panel which deserve to be recorded even if I have lost the context ... Graeme Dinwoodie commenting on the fact that there is a great deal of paternalism in copyright laws (citing the US provisions on reversions), and Richard Hooper saying that complexity provides excellent protection for the "big guys", and drawing parallels with the way the complexity of the financial markets allowed the global financial crisis (or GFC, an shorthand expression which seems to be current in Australia only but which ought to be more widespread) to catch everyone by surprise including those who were supposed to understand what they were doing (he mentioned, though he did not pose, the twin questions "have you ever met an intelligent banker?", and "have you ever met a banker who did not think he was intelligent?")

Given that note-taking is an imprecise science, and my memory an increasingly unreliable piece of equipment, readers are invited to comment on, add to and correct this posting. Please.

Digital Copyright Exchange(s), The Hooper Report and Orphan Works

On Wednesday, the Institute of Brands and Innovation Law (IBIL) of University College London held a seminar to discuss these topical copyright issues. With some material added by me, Marta Safin reports ...

The event was opened by the Chairman, Professor Sir Robin Jacob who compared orphan works' authors to property owners who do not maintain their properties and asked whether they should have the right to their work if they 'cannot be bothered to be found'. He drew a comparison with the landowners' neglect leading to the creation of rights of way or squatters' rights.

Position in Europe

The seminar progressed to a brief summary of the current position in Europe by Maria Martin-Prat,  the Head of Unit 'Copyright' in the IP Directorate of the European Commission. Maria introduced the new Directive 2012/28/EU, adopted on 25th October 2012, on 'certain permitted uses of orphan works'. She described the digital technology as the start point of the development of the Directive, as trying to locate the author who cannot be found seemed an increasing problem, which the Directive is aiming to solve. In Maria's opinion the individual works are not the problem; it is the mass digitisation and mass use of collective works which requires proper licensing which needs facilitating. The Directive is the first piece of copyright legislation with a cross-border effect and the Member States were given 2 years to implement it.

Position in the USA

The situation of orphan works in the US was presented by Shira Perlmutter, the Chief Policy Officer and Director of International Affairs for the US Patent and Trade Mark Office. She described it as 'work in progress', whereby the USA are starting over again, after the first proposal did not pass 4 years ago. The draft law applied to all types of orphan works and focused on the limitation of remedies. It required that a 'diligent effort reasonable in the circumstances' is used: the Copyright Office would have been required to publish guidance on what would constitute diligence. If the owner was found (or "showed up", as she put it), they should be paid reasonable compensation.

The Hooper Report

The next panellist to speak was Richard Hooper CBE, the author of the Hooper Report, who started off by saying that his research concentrated on copyright licensing and processes and organisation of copyrights rather than copyright changes and commercial rights or rights' owners. For the first 4 months of his research Richard looked at streamlining of copyrights' licensing and establishing key existing issues experienced by people working in the industry. The second 4 months of work was spent on trying to find solutions for the identified issues. He chose to focus on the proposals for a 'copyright hub', which has 5 main purposes:

1. It will help people to find their way through the complexity of copyright

2. It will educate people about copyright

3. It will be a place where people are able to register their rights

4. It will be a place for automated copyright licensing system for a high volume, low transaction cost copyright licensing

5. It will act as an authority where prospective users of orphan works can go to demonstrate they have done proper, reasonable and due diligence searches for the owners of those works before they digitise them

The view from the IPO

Edmund Quilty, Copyright and IP Enforcement Director, IPO, started with the Gowers Review, which had touched on the issue of orphan works, and the Digital Britain report which had made recommendations on collective licensing. He mentioned the notorious clause 43 of the Digital Economy Bill, which had been dropped from the Act as eventually passed in the "wash-up" at the end of the last Parliament. The new government had commissioned a new intellectual property review, under a different former Financial Times journalist (ex-deputy editor this time, though Ed seemed to promote him).

He then spoke about the Enterprise and Regulatory Reform Bill, which contains scheme-making powers to deal with orphan works (powers which might now come to be exercised in the course of implementing the directive) and extended collective licensing, as well as a few other copyright matters.

Sir Robin took the opportunity afforded by the need to introduce the next speaker to say that as a result of the directive there would be a registry of orphan works in Alicante, part of the Observatory, adding that he had wondered what there was to observe in Alicante.

The Academic view

Graeme Dinwoodie from Oxford University spoke of the international climate which frames the choices to be made – in particular, the requirements in Berne and Trips that there be no formalities. He reinforced the point that the new Directive reflects the 'country of origin' rule in its art. 4 on diligent search, and complies with the formalities rule from the Berne Convention. This (he noted) was often considered to be fundamental to Berne, but had only been included in the Berlin Act of 1908. Prior to that there was a “one formality” (home country) rule, and the Directive reverts to that approach.

Doing away with the need for formalities, he said, tends to damage the "little guy", because the "big guys" can set up systems to deal with the lack of information about copyright ownership. in the US system, if the "little guy" messed up he would lose copyright altogether.

Graeme pointed to the weakness of the current Directive: the fact that there is still right for compensation even for past uses which might not make it beneficial to go through the diligent searches. On the other hand, he commented on the innovative approach it takes to mutual recognition of orphan status which will be helpful to users.

Questions and answers

The panellists' presentation was followed by a Q and A session and discussion on the links between orphan works and Hooper's 'copyright hub', the practicality of implementing the Directive and the extended collective licences scheme. [I am putting this in a separate posting, as it is based on my notes of the discussion and therefore should be separate from Marta's report - Peter.]

No escape from software patents

An impassioned plea for software to be made patentable, included in this report from ZDnet of a conference organised by the Westminster Legal Forum (never heard of it before). It's John Mitchell, the chairman of the SME Innovation Alliance, who's been heard on this subject before and whose position I find it hard to understand. Patents, a fortiori software patents, are playthings for big business: they enable them (should they wish to do so - and I don't mean to imply that they always do) to bully small businesses. Worse still, they lead to the worst excesses of trollery and it's small businesses that suffer from that rather than the large ones - though they are certainly not immune.

Mr Mitchell compares software to materials, like wood and paper, from which inventions may be made. That in itself does not justify allowing patents for it: no more than it justifies patents for wood or paper. What patents can rightly be granted for are the inventions that are made using the software. And that's exactly what the UK and European patent systems strive to do, without crossing the line and granting patents for pure software (which as one comment on the ZDnet story points out is nothing but mathematics). The trouble is that it's a difficult boundary to map, and the UK Patent Office and the EPO have drawn it in slightly different places. A problem, but not the problem that people seem to be arguing about. Both systems seem to me to look for a technical effect that lies outside the fields excluded from patentability by the relevant legislation, although they express this search in different ways. And, excluding a few die-hard anti-patent lobbyists (but a growing number: software and business methods patents bring the whole patent system into disrepute), that seems to be the attitude of most people, outside the USA at least. Including Marty Goetz, another commenter on the ZDnet story, and probably Mr Mitchell too. And certainly Prof Hargreaves, whose recommendations on this point seem spot on.

The Hargreaves Review in detail: Copyright exchange

The Review concluded that there were too many patents about - it didn't say there was also too much copyright, but I see this as a big problem. And the solution is a higher standard of originality, as promulgated by the Court of Justice in the Infopaq case - applying the "author's own intellectual creation" test across a far wider range of copyright works than we ever thought it was supposed to apply to.

That, however, does not feature in the Review, although it might provide a solution to the Google Problem that lies at the heart of the Review. Instead, it addresses the problem that the "creative industries" face by proposing a mechanism for granting licences - a copyright clearance centre.

First, though, what is this rubbish about "creative industries"? A company cannot be creative: only a human being can do that. Still less can industries be creative. Our copyright law properly gives protection to the commercial interests that turn one or more persons' creative work into a paying proposition - record companies, publishers, film studios, broadcasters - but in no way are they creative, and for that reason their rights are defined differently and protected for a shorter time. Computer game companies, web technology companies, app developers - they take the work of creative people and commercialise them. They are engaged in publishing. They might bring together teams of talented people who together will be more creative than they would be alone, but that does not shift the centre of creativity - that remains, unchangeably, with the individuals.

That said, the prospect of a Digital Copyright Exchange is exciting and inventive - a creative solution to the problem. However, it is not entirely novel, as the last Government tried to encourage industry to form a comparable Digital Rights Agency. Given the jealous way in which IP owners guard their rights, it might be like asking turkeys to support bringing Christmas forward, but if implemented properly the idea could provide a robust and reliable means of identifying, clearing and enforcing rights in digital content. I can't see it working well without an element of compulsion - well, without a lot of compulsion - though that could come from the market rather than from the law. It means that copyright will become less of an exclusive right, more a right to receive remuneration for the use of one's work It might also be a step towards a copyright registration system - which could be another useful device for cutting back the excesses of a system that is simply protecting too much. Another matter that fell outside the Review's terms of reference.

The Hargreaves Review in detail: Copyright exceptions

Thank goodness, the Big Thing that the Prime Minister seemed to be hoping for from Hargreaves was rejected by the Review: a "fair use" exception to copyright. Do the many people who seem to think this is unfortunate understand the exceptions we already have in our law, I wonder? (And at a time when judges are being criticised for fashioning a law on privacy from the legislative clay of the Human Rights Act does anyone really want judges elaborating new exceptions to copyright protection?) They don't fall far short of fair use anyway - and being more precisely targeted there's less danger of collateral damage.

The important issue is that new technologies enable us to use copyright material in new ways - ways which don't necessarily prejudice the economic interests of the copyright owner, and therefore have no effect on the incentive to create. Format shifting is a case in point: the economic interests of the copyright owner should be exhausted once an individual has paid for an authorised copy of a recording. The buyer (who probably thinks of himself or herself as the "owner" of the "music", a misconception that the law could usefully try to find ways to dispel) ought to be free to rip the recording from the CD to put a copy on their personal digital device - free also to make a digital recording from their vinyl record collection. Although the last Government promised a new exception to allow these activities, it failed to deliver and in the UK, unusually, copying lawfully purchased material to other formats remains unlawful without a licence - which the record industry has expressly given, via its trade body. Still, a legal exception would be better than what we have at present.

The reason this remains an outstanding issue is that it is so difficult to define the scope of an exception within the constraints of the information society directive (which is increasingly being called the Copyright Directive, as if it were the only one and had comprehensive coverage) and without introducing a levy system, something successive governments (since at least Mrs Thatcher's) have refused to countenance.

There will also - if the Review be implemented - be a new exception for parody. I firmly believe that in the field of literature and art parody requires no exception: a good parody involves nothing remotely like copying. In music it's more complicated, but a licensing regime would surely be preferable to allowing free use for purposes that fall within the hard-to-define category of parody. Where the parody consists of setting new words to someone else's music, the person availing themselves of the musical work should do so on proper terms - although the copyright owner's right to prevent it should be based only on moral rights (an area which Hargreaves didn't get into, but which could usefully be tightened up in this area). Video as parody seems to be the hot topic at present, and Newport State of Mind the paradigm case - removed from YouTube at the behest of the copyright owner. Shame on you! What harm was it doing to the copyright owner's interests? And over and above that, if a royalty had been paid for the use of the music, I can't see how there could be any realistic objection.

Less contentious will be the proposed exception for non-commercial research for text mining and data analysis, freeing up the results of academic research - making usable material which has often been paid for by the taxpayer and which should therefore be available for general use, not locked away in the vaults of whoever created it (or employed the creator). Non-commercial it would have to be, given the limits of the Directive, and this would deprive it of a lot of useful effect, but I hope the problem is not in any event a big one given that copyright has no business protecting information, or databases given the high-level requirement for originality in that field (which the Court of Justice suggested in Infopaq should, via the information society directive, be applied more generally in the copyright world - a Good Thing, I think, but one that seems to have escaped comment from the Review).

Finally, libraries and archives should have wider rights to make copies to preserve material in their collections - extending the existing rights to audiovisual works and sound recordings. Having been involved with a priceless archive of sound recordings on deteriorating tapes, I can certainly applaud that idea.

The Hargreaves Review in detail: Patents

Being concerned with innovation and growth - the matters identified by the Prime Minister when he announced the Review - Prof Hargreaves unsurprisingly devotes a chapter of his report to patents, and having got up a head of steam with my last posting I'll elaborate on what the Review had to say here.

The big problem is that there are too many patents, if I may put words into the good Professor's mouth, which is unfortunate given that patenting activity is so often seen as an indicator of innovative activity - so more patents are a Good Thing. The Review has evidence that this might not be the case.

Myriad patents form what the Review calls “patent thickets”, areas where too many patents crowd a market and prevent innovation, as identified originally by Carl Schapiro (of University of California, Berkeley - full reference in my Dictionary of Intellectual Property), who doesn't seem to be quoted in the Review. A different matter from a minefield of patents, where all the patents are filed by the owner of the central one and serve to protect it, and which I thought had died out in Europe at least, because of expense of obtaining them.

As an example, Hargreaves explains how one smartphone might be the subject of hundreds of patents. He identifies computer technologies and telecommunications as the areas most affected by patent thickets, areas where there is sequential innovation that encourages the growth of thickets. But this is often the inevitable result of technical standardisation and does not amount to the sort of patent thicket that obstructs innovation in the way the Review is worried about. Having patents impacting on standards is of course a problem in itself - one with huge competition ramifications, which happily are fairly thoroughly dealt with under that rubric (although there's always room for improvement).

No, I think the problem lies in the phrase I put into Prof Hargreaves's mouth: too many patents. Too many patents for incremental inventions - leading to thickets and minefields - and exiguous technical developments. Not that they are always necessarily a bad thing, of course, but when they grow into an impenetrable thicket something has gone wrong. But patents too often seem to become ends in themselves, not just means: that's what trolling is all about, of course, but it's also encouraged by investors - yes, including those Dragons - who insist on seeing a patent before they will invest (but, in my experience, don't do any due diligence to establish whether the patent stands a chance of protecting what they want to protect). Often, the investor will put money in on the strength of a patent application - and the inventor will have a sigh of relief at having someone else to foot the bill for prosecuting the application, and for the foreign filings.

Too many patents for stuff that really has no place in the patent system, too. Software and business methods are rightly excluded as such: there is no such thing as a software patent, though there are many in that grey area where software is claimed to have a technical effect - a notoriously slippery concept. Professor Hargreaves proposes preventing patents getting into these areas, where the incentive effect is small compared with the overheads imposed. His Review also suggests resetting financial incentives for assessing whether to renew patents, and ensuring that only high quality patents are granted in the first place: easier said than done, given that one concern of the patent system must be to encourage everyone with a patentable invention to come forward lest the next great invention be lost.

The quality of patents will be enhanced with international co-operation - the highways that have been created between some of the larger patent offices in the world. Hargreaves also recommends that international searches conducted under the PCT be accorded greater credence - which will also help to clear backlogs of applications (and result in more patents ...). The review also recommends that the UK government push for the unified patent, and (even harder) EU patent courts, both worthy and uncontentious aims but ones that the UK can only hope to influence, not achieve

Euro-Hargreaves? The Commission's IP Blueprint

There's a lot of blueprinting going on at present. I hope that the Hargreaves Review and the Commission talked to each other, because both have come up with comprehensive reviews within a few days of each other. On 24 May the Commission stuck its oar in, and several recommendations overlap or are identical with those of the Hargreaves Review - which might be an indication of the futility of trying to deal with intellectual property policy at the national level ... Commissioner Barnier said:

IP is the key to innovation – and the word property is the key for an inventor to have the incentive and get the funding for innovation.

Hmm. That could cause controversy, in itself. Property? Is there no alternative? And is there a suggestion of the "means and ends" problem here?

The Commission recommends (in the words of its press release (IP/11/630) - I am under pressure of time, but will return to this and deal with it in greater detail another time):

• Patents: the Commission already launched proposals in April for a unitary patent protection under enhanced cooperation (see IP/11/470). Meanwhile, work will continue on proposals relating to the creation of a unified and specialised patent court for the classical European patents and the future European patents with unitary effect. This would considerably reduce litigation costs and the time it takes to resolve patent disputes. It would also increase legal certainty for business.
• Trade marks: while trade mark registration in the EU has been harmonised in Member States for almost 20 years and the Community trade mark was established 15 years ago, there is an increasing demand for more streamlined, effective and consistent registration systems. The Commission intends to present proposals in 2011 to modernise the trade mark system both at EU and national levels and adapt it to the Internet era.
• Geographical indications (GIs): GIs secure a link between a product's quality and its geographical origin. However, there is currently no such system available at EU level for the protection of non-agricultural products such as Carrara marble or Solingen knives. This leads to an unlevel playing field in the Single Market. The Commission will therefore carry out an in-depth analysis of the existing legal framework in the Member States as well as the potential economic impact of protection for non-agricultural GIs in 2011 and 2012. Depending on the outcome of an impact assessment, these could eventually be followed up by legislative proposals.
• Multi-territorial copyright licensing: While the substantive scope of copyright has been largely harmonised, rights are still licensed on a national basis. In view of the digital Single Market, streamlining copyright licensing and revenue distribution is one of the most important challenges that must be addressed. In the 2nd half of 2011, the Commission will submit a proposal to create a legal framework for the efficient multi-territorial collective management of copyright, in particular in the music sector. It will also establish common rules on the transparent governance and revenue distribution. In the second half of 2011, the Commission will also launch a consultation on the various issues related to the online distribution of audiovisual works.
• Digital libraries: The creation of European digital libraries that preserve and disseminate Europe's rich cultural and intellectual heritage is key to the development of the knowledge economy. To facilitate this, the Commission is also tabling today a legislative proposal that will enable the digitisation and online availability of so-called "orphan works" (works like books and newspaper or magazine articles that are still protected by copyright but where the right holders are not known or cannot be located to obtain copyright permissions) – see MEMO/11/333. Concurrently, the Commission looks forward to concluding a Memorandum of Understanding amongst libraries, publishers, authors and collecting societies to facilitate licensing solutions to digitise and make available out-of-commerce books.
• IPR violations: Counterfeiting and piracy are a growing threat for the economy. Between 2005 and 2009, the number of registered cases at the EU borders of goods suspected of infringing IPR increased from 26 704 to 43 572. Meanwhile, the creative industry estimates that piracy has cost the European music, movie, TV and software industry €10 billion and more than 185 000 jobs in 2008 alone. The Commission is set to intensify its efforts in this area. Firstly, the Commission has tabled a regulation today that is to reinforce the European Observatory on Counterfeiting and Piracy, which it launched in 2009, by entrusting its tasks to the Office for Harmonisation in the Internal Market (OHIM). This will allow the Observatory to benefit from OHIM's intellectual property expertise and strong record of delivery in trade marks and designs. The Regulation now passes to the European Parliament and the Council for consideration. Secondly, in Spring 2012, the Commission will propose to revise the IPR Enforcement Directive (see IP/04/540). The Directive provides for civil law measures allowing right holders to enforce their intellectual property rights but should be adapted, in particular to meet the specific challenges of the digital environment.
• IPR enforcement by customs: Customs supervise all trade crossing EU external borders: they carry out controls for many purposes and have an essential role in fighting the trade in IPR infringing goods. In 2009 only, customs intercepted over 40 000 suspect shipments involving 118 million articles. Whilst the majority of goods intercepted are counterfeit or pirated, customs' unique position at the border allows for the enforcement of a wide range of intellectual property rights. As part of today's overall IPR strategy, the Commission also proposes a new customs regulation, to further reinforce the legal framework for customs' actions. The proposal also aims to tackle the trade in small consignments of counterfeit goods sent by post as the overwhelming majority of these goods results from internet sales.

I like the parallel with the engineering process of blueprinting - though I don't think the verb meaning was intended by the Commission, or anyone else who uses the word in this context:

Dismantling engine and reassembling it to exact specifications and tolerances. This process may help to improve engine performance, smoothness, and reliability. (Dictionary of Automotive Terms.)

The intellectual property system (if I may be forgiven for using such a loose expression) would certainly benefit from this. However, Wikipedia sounds a cautionary note:

Ideally, blueprinting is performed on components removed from the production line before normal balancing and finishing. If finished components are blueprinted, there is the risk that the further removal of material will weaken the component.

Perhaps, then, we're too late. Or maybe the important point is that no-one is suggesting the removal of material from it ...

The Hargreaves Review in Detail: sources of advice for SMEs

The Hargreaves Review recommended that the IPO draw up plans to improve the accessibility to the IP system to "smaller firms who will benefit from it". Does that mean that it will remain closed to those who won't benefit, or that a benefit will flow pretty well automatically? Well, OK, I think I know, but this Report is not written in the sort of clear unambiguous English that should be employed. A thought crossed my mind yesterday about the problems of getting a professor of journalism to write a report - but I decided I'd better not express it publicly.

It also recommends that this should include access to lower cost providers of IP and commercial advice. Lower cost than what? A magic circle firm's hourly rates? I work for lower rates than that - frequently for very low rates - but the clients are not beating a path to my door ... The Daily Telegraph picks up on this today, or rather picks up on the comments of a small firms lobbying organisation - "lobbynomics" again? No, not in this case - saying that the Intellectual Property Office isn't actually qualified to do this. The Review does mention this as a possibility but more in the way of reporting what respondents asked for - it isn't included in the recommendation.

Two important points spring to mind here. First, solicitors are business advisers in a way that the Review doesn't seem to have looked into. Of course there are many who'll confine themselves to advising on the law, but a good solicitor will give that advice in the context of the client's business. They will be well able to talk to the client about protection, strategy, licensing - all the things that Hargreaves seems to find lacking. And while some will rack up the fees, many will give initial advice free of charge - some will even have the flexibility to defer charging (something I have done recently, in a small way, for a couple of start-up clients), even to consider taking an equity stake in the business perhaps - certainly something I'd happily have done had I been a sole practitioner. the problem is that small businesses - the very ones that need the advice - are frightened about pursuing it.

What is needed - what fits with Hargreaves's recommendation - is clinics at which small businesses can have a short initial free-of-charge consultation with a professional adviser - exactly what my friend Jane Lambert of NIPC has been doing in what she insists on calling the North, but which lies south of the Tees - well, I suppose everything's relative - and indeed elsewhere. This is how the professions should be reaching out to clients, and to be fair many of them are doing so.

A second point arises out of the IPO's credentials for providing advice. They know their way around the patents system, and the trade marks one and the registered designs one, though I suspect (and would be interested to find out for sure) that an examiner would be too specialised to talk in general terms about a business's IP needs. Do they ever move from one discipline to another in the IPO? And wouldn't any advice they gave tend towards extolling the benefits of getting patents, trade marks, registered designs? Would they be impartial enough?

There's a widespread tendency to equate patenting activity and innovation. The number of patents filed is a potential guide to the amount of innovation going on, although it would be skewed by businesses filing myriad patents to create minefields - the sort of thing deprecated by Hargreaves as "patent thickets" though what he calls a thicket isn't exactly what we meant by the expression before he redefined it. A patent is not a ticket to prosperity, and a lot of money can be wasted on them (as Jane Lambert described in her book “Enforcing Intellectual Property Rights: A Guide for Businesses and Creative Individuals” Gower 2009). Would setting up the IPO as a source of advice risk this happening? Anyway, I am already concerned by the way the IPO spends public money (not, I guess, taxpayers' money, because it's a trading fund so it makes its own money) in competition, to a degree, with private practioners - who are, of course, taxpayers ... Not to mention the way they trivialise everything with Wallace and Gromit. But so long as their activities are constrained they should help to raise awareness and create work for the professions - that should certainly be the goal - and it's from the professions that the advice should come.

Now, setting up a sort of legal aid fund to enable small businesses to get the advice they need, and to fight the IP bullies who they will inevitably have to deal with, that's another matter.

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.

Boyle's Law

The FT this morning carries this piece by James Boyle about the Hargreaves Report, even before the report has appeared. Prof Boyle says on Twitter (@thepublicdomain) that the FT should have hung onto it until after the Review appeared: to which I say, as I have said before, if the Hargreaves Review had made use of its blog which the Intellectual Property Office set up and actually given us something useful to go on there'd be less need for leaks. I am still deeply unimpressed by the fact that the blog, and the web pages, were updated so infrequently - and even this morning the front page still carries a March date, since when if I remember correctly there's been one posting on the blog - and very little on Twitter. If some form of purdah had to be observed, we should be told ...

Prof Boyle starts with the Prime Minister's claim that Google says it could never have started its business in the UK, and I think it's about time someone asked, is that a bad thing? Maybe what's wrong with copyright law is that in one place in the world it encouraged the establishment and growth of a business that seems sometimes to have taken to dictating what, in practical terms, copyright law says. Maybe it's the American law that needs tightening up: maybe (and now the European Commission, Competition Directorate, is seised of a small part of the matter) it's that Google needs to be regulated.

Anyway, to come back to the Review. Prof Boyle answers one of the questions I have been wondering about, namely whether the report was going to say anything about any other of the bundle of rights that make up "that property that is called intellectual" (per Benjamin Constant: get a copy of my Dictionary to follow the reference) in his article - here are the headlines I have distilled from his piece, which says there are 10 specific recommendations covering patents, copyright, and the policy-making process:

1. Do something to stop the growth of, and to clear, patent thickets
2. No patents for software or business methods
3. Patents don't work well in fields where there is "sequential innovation", such as IT
4. Deal with orphan works by  a mixture of collective licensing and individual exemptions
5. Deal with the "tangled web" of licensing
6. Make IP policy evidence-based (it uses the word "lobbynomics" to describe the current approach to making policy)
7. An open-ended fair use exception in copyright is not permissible under EU law (notwithstanding Lionel Bently's arguments to the contrary) so we should first "max out" (Prof Boyle's words) the exceptions that are allowed, liberalising format shifting and archival copying, facilitating text and data mining of scientific literature, giving "more robust protection" to parody and criticism, and pushing the EU to make the system of exceptions more adaptable to the needs of new technologies

I guess to make ten out that you have to break down item 7 into constituent parts. It's clear that there's also something on enforcement with which Prof Boyle finds himself in disagreement, and he mentions that the Digital Economy Act is still "deeply problematic" (another example, perhaps, of the British irony that he elegantly lauds elsewhere in the article: understatement, at least). From that summary, it doesn't look as if there are many solid recommendations for legislation, although Prof Boyle had a small area of newsprint (or online space) to cover it. Item 4 is the part revealed in the FT earlier this week which I blogged about at the time, and it looks to me like a good one. Item 2 is pretty clear and straightforward, and no doubt impossible - though it should be possible to wind things back a bit, and it would surely be desirable to do so. How to implement item 1 is not clear (perhaps it will be when we see the report) and item 3 seems to be no more than an interesting observation - one that might prove influential in an evidence-based policy.

I can't really complain, as I didn't present any suggestions to the review, but I am disappointed to see nothing about the overreaching effects of the trade mark system or the chaos created by the manifold laws on designs (and no, I'm not talking about BL v Armstrong). But I am looking forward to seeing the full report - and hope it will be as elegantly expressed as Prof Boyle's article.

Hargreaves and fair use

The FT article mentioned in my previous post also refers, though almost as an afterthought, the question of aligning copyright with what consumers actually do - meeting their legitimate expectations, you might say. I don't think anyone ever suggested meeting illegitimate expectations, though what is and isn't legit does involve a heavy dose of subjectivity.

The suggestion is that one should be permitted to "rip" music from a CD onto a digital player or computer, which the law does not permit at present. Indeed, the law does not permit it, although the system of urban myths that usually stands in place of copyright law for most people does allow it. But so too does the record industry, wise enough not to alienate the vast majority of its customers, so the FT's assertion that permitting "ripping" will leave the industry free to concentrate on commercial infringers rings a bit hollow - I don't imagine they are wasting time on non-commercial ones anyway.

Hargreaves and the copyright Big Bang

I wonder whether the Hargreaves review will touch on any areas of intellectual property law apart from copyright . Today's report in the Financial Times focuses on the copyright area.

A revolution in copyright law could make the UK as important a centre for the distribution of digital content as it became in financial services after the Big Bang, the government will be told this week.

Great! Look at what the Big Bang has left us with. The newspaper tells us that the report will recommend the establishment of a digital rights exchange, which it describes as an "a one-stop online shop for clearing the use of copyright content ". A similar proposal was made in the course of the consultation on the Carter report  although the final report did not adopt it.

What we have heard about the review so far has all suggested that it will focus on introducing a broad fair use right to replace, or complement, existing fair dealing provisions in copyright law. A clearance centre seems to be a much more balanced approach to the matter. when the Prime Minister announced the review last year he said that Google could never have launched in the UK because of the copyright regime, but it does sometimes seem that Google's  way of dealing with copyright law is to steamroller the rights of common rights owners and try to sort out the legalities later, as the Google Book Agreement illustrates. The FT reports the experience of Spotify and Last. Fm, UK based digital media start-ups, which it says have long complained about the difficulty of securing rights to music and movies for online distribution. If a way could be found to help them do that will more easily, it would be a good thing.

Film studios and record companies, along with a what the FT refers to mysteriously as "other  content owners" might not agree. The whole history of copyright in recent years has been about their failure to adapt their business models to the new environment. When artists like Radiohead bypass the record labels and sell directly to their fans by digital download, the writing must be on the wall. What do "content owners" (including publishers) bring to the party these days? Not a lot.

And why should copyright owners, especially those who have merely inherited their assets, retain the power not merely to exploit the copyright they control but also to prevent its exploitation altogether? Maybe a clearance centre would help to remove this chilling effect, too.

A clearance centre needs some form of compulsion attached to it. In the 1988 Act copyright largely changed from being an exclusive right to being a right to receive remuneration for the exploitation of one's work. At the same time the introduction of moral rights gave creators the ability to protect their reputations. Perhaps what we had in 1988 was an incomplete jigsaw, or perhaps subsequent technological developments have meant that the pieces do not fit together continuously. Either way, it looks as if the Hargreaves Review might help make the picture a bit more complete.

A new week of intellectual property ...

The Financial Times gives us a preview of the Hargreaves Review's report, which is promised for Wednesday, while Rebecca Tushnet's blog draws attention to a paper by Christian Handke on the economic effects of copyright, part of the work of the Copyright Policy Research Forum of the National Research Council (of the USA). The NRC has set up a blog to enable participants who can't do so in person to contribute. And they seem to be making better use of it than the Hargreaves Review did of its blog.

Prof Tushnet's blog also draws attention to a story in the New York Times about the perils of naked licensing - well, presumably naked: Donald Trump has been letting developers use his name, for no small consideration I imagine, and his goodwill has suffered for it.

Crain's Detroit Business website reports (here, free sub required) that IP litigation in Michigan has declined for the third year running, according to some attorneys - the victim, it seems, of a combination of low plaintiff success rates, meagre damages and speedy routes to trial, none of which attract plaintiffs, especially trolls. But that general statement seems to hold true for patents, and the report notes that trade mark litigation is not suffering.

Fair use? Don't confuse matters!

An article in the Independent this morning (available here) challenges received wisdom about the Hargreaves Review's job. Coverage of the Review has given the impression that it was set up to foist fair use on us, whereas it seems that not all of the small businesses that the government is trying to encourage - by reforming copyright law and designating the area around my firm's office as a centre for all things digital - it hardly qualifies as Silicon Valley, and Silicon Roundabout doesn't have quite the right ring to it. "East London Tech City" somehow doesn't sound like a desirable destination. Just plain Hoxton or Shoreditch seems to have quite enough kudos nowadays.

Anyway, when the PM announced the new initiative (in the old Trumans brewery in Brick Lane) he remarked that Google couldn't have contemplated starting their business in the UK because of the copyright laws. Strange, because they aren't exactly beyond the reach of UK copyright law anyway. Or any other country's copyright law. But they are so big, perhaps, that it's not want the law says that matters, more the way Google want to deal with it. Which might be the same as saying that by constantly challenging existing copyright laws Google is keeping up the momentum of reform.

All this talk about reusing other people's work depresses me. If it's so like someone else's work that there might be a copyright problem, it should be discouraged. People can create their own stuff that tips its hat to others' works, but even parody and caricature is possible without running the risk of copyright infringement - indeed, it's better for it, surely. If the copyright owner feels he or she has a claim for infringement, that might indicate that the rules about infringement need attention, not that we should carve out a huge copyright-free "fair use" area. Perhaps the Court of Justice's Infopaq judgment, raising the originality test to the heights of "author's own intellectual creation", will bring about the necessary changes.

Which isn't to say that the present exceptions can be left alone. They are too vague and not well-enough understood (as I noted a while ago in connection with Ben Goldacre's problems with LBC): they give the absolutists too much power. Which brings me to the point in the Independent's story that really caught my eye: a business set  up to help academics share and manage research papers online, which has problems with universities owning copyright. It seems to me there's a very simple solution there: these universities are, in this country at least, substantially funded out of the public purse, and I believe the same is true of other countries too - even in the US many universities are public ones. By what right do they claim to be entitled to exclusive rights in the work for which the taxpayer has paid? The same paradox in the field of Crown copyright was addressed some years ago - the minister responsible for it being David Clark, whose seat in Parliament I once tried to take from him and came closer than he probably expected - and if universities' copyright is a problem now, let's do something about it. Stop at least one group of absolutists!