1 August 2011Copyright

Hargreaves makes 10 recommendations to UK government

Professor Ian Hargreaves has made 10 recommendations to the UK’s coalition government for improving the country’s intellectual property framework, after he found it to be “falling behind what is needed” to boost innovation and growth in the UK economy.

The findings of the government-commissioned review were released on May 18. Hargreaves worked with the UK Intellectual Property Office and a five-member advisory panel, which included Roger Burt, the IP law counsel at IBM in Europe, and James Boyle, a professor of IP law at Duke Law School.

He also attended review events, meetings, workshops and seminars, and launched a ‘call for evidence’ that received submissions from almost 300 individuals and organisations. UK Prime Minister David Cameron requested the review in November 2010.

In the review report, Hargreaves said: “Copying has become basic to numerous industrial processes, as well as to a burgeoning service economy based upon the Internet. The UK cannot afford to let a legal framework designed around artists impede vigorous participation in these emerging business sectors.”

Hargreaves was asked to look at the feasibility of incorporating a US-style fair-use doctrine into UK and European law, but he discovered that there are “genuine legal doubts about the viability of a US case law-based legal mechanism in a European context”.

Joel Smith, an intellectual property partner at Herbert Smith LLP, said: “Rather than picking a fight with the [European] Commission, the UK could achieve many of its policy objectives by taking up the copyright exceptions already permitted under the Copyright Directive.”

Hargreaves has instead made recommendations that will yield a “more adaptive copyright regime” and the “economic benefits” that come with it. A Digital Copyright Exchange—described by Hargreaves as a “network of interoperable databases to provide a common platform for licensing transactions”—would “boost UK firms’ access to transparent, contestable and global digital markets."

He also recommended copyright exceptions that would allow copyrighted material to be parodied, archived by libraries and used in noncommercial research. ‘Format shifting’—the transfer of a copyrighted work from one medium to another—should be allowed and legislation should be enacted to make ‘orphan works’ available for licensing, ensuring that nothing is unusable because a rights owner cannot be found.

Smith added: “This will be welcomed by rights holders nervous at the threat of the UK adopting a new and open-ended approach to examining any defences to infringement, in the light of the increasing pace of technological change.

This would have run contrary to the incremental ‘case-by-case’ approach taken by the UK courts to reviewing the exceptions.” Some commentators have identified Google as the main advocate of a UK fair-use doctrine after Cameron mentioned the search engine when he announced the review.

In a statement about the review’s findings, a British Phonographic Industry spokesperson said: “...Hargreaves has sensibly rejected Google’s flawed case for a significant weakening of UK copyright. He has recognised that innovation and economic growth are best stimulated by licensing the IP we create in the UK...”

In Google’s submission to the review, Sarah Hunter, the head of UK public policy at Google, said: “Although EU level change is desirable, we believe the UK government can and should make a series of relatively small changes to UK copyright law to ensure that homegrown innovators have the confidence and the opportunity to compete globally.”

A Google spokesperson added: “We have long argued in favour of moderate copyright reform, to foster innovation and create jobs. This report is a welcome contribution to the debate and we look forward to the government making its decision in due course.”

Hargreaves also said that a unified EU patent court and EU patent system should be a “top priority” for the UK, and that the government should introduce a “small claims track for low monetary value IP claims” in the Patents County Court to support rights holders in enforcing their rights.

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