Copyright reform - the UK Government consults

It's all been surprisingly fast moving in the world of IP in the United Kingdom since Professor Ian Hargreaves published his review of IP and Growth - and now new government copyright proposals are being opened up for consultation until a closing date of the 21st March 2012 and the proposals are "to modernise the copyright system and remove unnecessary barriers to growth". The consultation "seeks relevant evidence on the potential for the proposed measures to improve the contribution of the copyright system to UK economic growth, and to inform decisions on legislative and other actions in these areas. The consultation is aimed at individuals and organisations, including small and medium sized business, which may be impacted by the proposed changes to UK copyright laws." So what's on the table? Well here's a snapshot:

- Creating an exception to allow limited acts of private copying – so making the widespread practice of coping a CD to an MP3 player legal saying “This move will bring copyright law into line with modern technology and the reasonable expectations of consumers.”

- Widening the exception for non-commercial research to allow data mining, enabling researchers to achieve new medical and scientific advances from existing research. Currently researchers cannot use some new computer techniques to read data from journal articles which they have already paid to access without specific permission from the copyright owners of each article.

- Introducing an exception for parody and pastiche, to give comedians and other people the creative freedom to parody someone else’s work without seeking permission from the copyright holder.

- Establishing licensing and clearance procedures for ‘orphan works’ (material with unknown copyright owners). This would open up a range of works that are currently locked away in libraries and museums and unavailable for consumer or research purposes.

- Introducing provision for voluntary extended collective licensing schemes, which would make it simpler to get permission to use copyrighted works and help ensure rights owners are paid. These schemes would allow authorised collecting societies to license on behalf of all rights holders in a sector (except for those who choose to opt out).

- Collection societies are also highlighted with the suggestion that they must self regulate to acceptable standards – or face statutory regulation

- Modernising other exceptions for copyright including those for education, quotation and people with disabilities

- introducing a new prohibition on allowing contractual provisions to override any of the statutory copyright exceptions.

Minister for Intellectual Property Baroness Wilcox said: “The Government is focused on boosting growth and some freeing up of existing copyright legislation can deliver real value to the UK economy without risking our excellent creative industries. We are encouraging businesses to come forward with thoughts and evidence on our proposals to help us achieve this” adding “It is an exciting time for the development of intellectual property in the UK. We have already appointed Richard Hooper to run a feasibility study into a Digital Copyright Exchange and this consultation is the next step to ensure copyright legislation in the UK keeps up to date with emerging technologies and consumer demand.”

There is more – and you can access the Consultation and a the response form here http://www.ipo.gov.uk/pro-policy/consult/consult-live/consult-2011-copyright.htm

Comments on the consultation can be submitted by email to copyrightconsultation@ipo.gov.uk or by post to David Burgess, Copyright Consultation, Intellectual Property Office, 21 Bloomsbury Street, London WC1B 3HF.

Richard Hooper to lead Digital Copyright Exchange

The Government has today announced that Richard Hooper, formerly of Ofcom and the BBC, will head up a feasibility study to develop a Digital Copyright Exchange, one of the key recommendations in the Hargreaves Review of Intellectual Property. With over 20 years experience in the information and communications industry, Hooper seems a sensible choice for this project on the face of it; he is certainly no stranger to challenging projects, having led an independent review into the Postal Services Sector.

The Digital Copyright Exchange (DCE) is envisaged as a means to boost economic growth in the creative sector by lowering the costs of licensing and improving access to copyright material for businesses and consumers. However, the Review recognised that:

“A range of incentives and disincentives will be needed to encourage rights holders and others to take part [and that] governance should reflect the interests of participants, working to an agreed code of practice.” (Recommendation 3: http://www.ipo.gov.uk/ipreview-finalreport.pdf)

As a matter of opinion, a functioning digital rights marketplace should ensure the following:

1. That rights holders are fully supportive and willing to allow their content to form part of the DCE;

2. That the right technical people are involved to ensure that the technological infrastructure is fully functional and supported (too often in the past technical expertise around copyright-related schemes has been overlooked, to great detriment);

3. That licences available to purchase are regulated – one of the main problems faced by those who want to use other people’s material is the debilitating sum which is charged, often leading to the failure of many projects such as documentary films. An affordable and regulated licensing structure is key to facilitate the success of this scheme.

The Government has also indicated that it wants the DCE to be self-sustaining and free at the point of access for users.

The feasibility study will look at the licensing challenges facing different sectors and should take all these issues on board, basing its findings on evidence from a number of stakeholders. Views must be acquired from not only the creative industries themselves but also from consumers and individual creators to ensure a suitable balance of opinion. The study will run in two stages: firstly, defining the problems of copyright licensing across the sectors, and secondly to bring forward appropriate industry-led solutions with a view to how these could be implemented. Findings from the study will be reported to the Government before the summer 2012 Parliamentary Recess and will provide the groundwork for a functioning exchange.

Image 'Exchange_Place' from Flickr by _SiD_, used under CC-BY-NC-ND licence

Hargreaves - Sir Robin drills!

Solicitor and former SABIP member Laurence Kaye has written a very clear summary of the responses Prof Sir Robin Jacob gave to MPs on the Business, Innovation and Skills Select Committee. Noting that the Hargreaves Review had been far too general and had been given too large a remit in too small a timeframe, Sir Robin said that “it is not possible to do the whole of IP in six months” and he called for an 18 month study of the specific issue of online copyright. Sir Robin's thoughts cover the need to understand what technical steps from ISPs were possible before decisions were taken on the best approach to fighting online copyright infringement, the best forum for protecting copyright (favouring civil law proceedings), how a Dgital Rights Exchange might work (only on an EU level), the ongoing role of the Copyright Tribunal and Sir Robin also strongly supported an exemption to copyright laws to allow data mining, stressing that he had spoken to medical researchers at UCL who said medical advances were being stopped by the lack of this facility. There is much more and its a good read - and its all on Laurie's Blog, Laurence Kaye on Digital Media Law

http://laurencekaye.typepad.com/laurence_kayes_blog/2011/10/hargreaves-review-prof-jacobs-drills-into-the-detail.html

This blog also has Laurie's thoughts on MPS v Murphy

How do you solve a problem like Orphan Works?

Yesterday evening, a milestone in the ongoing discussions about copyright and (more importantly) orphan works was reached. A Memorandum of Understanding (PDF) to approve the digitisation and making available of out-of-print books and journals was signed by representatives of European rights holder societies, creators, authors and libraries. It has taken nearly a year, but all stakeholders in the process were finally able to agree on three main principles whichwould allow cultural organisations to make a greater portion of their collections available online:

1. Agreements must be negotiated on a voluntary basis by all relevant parties to determine what is to be digitised and to ensure that the items in question are no longer in "commerce" (works which were once published and which neither publisher nor author intends to re-print and sell again). Moral rights are key to this process and authorship(where known) must be acknowledged;


2. Collective licences may be granted by collection management organisations where a substantial number of authors and publishers are represented. Digital library projects must be widely publicised and rights holders given the option to opt out of any collective licensing scheme;


3. Collection management organisations may limit licences to those of represented rights owners only (rather than on behalf of all rights owners) if agreements include trans-border and/or commercial uses of works.

However, whilst an agreement of this kind is clearly satisfactory to rights holders, it remains to be seen whether libraries and other cultural institutions will truly benefit. The optimism of Olav Stokkmo (CEO of the International Federation of Reproduction Rights Organisations) that this MoU will solve the problem of orphan works is misplaced; large numbers of orphan works that reside in libraries and archives were never 'in commerce' (they are often unpublished, such as letters, diaries and manuscripts) and as such one wonders whether the scope of the MoU would extend to them. In addition, the issue of orphan works covers all types of work; the MoU deals only with text-based works where rights clearances are easier because there is traditionally one author and one publisher, whereas for audiovisual works there are often many independent rights holders to trace.

EU Member States are not required to implement the terms of the MoU,as it has little or no legislative weight. There remains an expectation that legislation from the EU on orphan works is imminent,with the issue currently being discussed at length in the UK as aresult of the Hargreaves' Review of Intellectual Property.

Photo: 'More old books...' by guldfisken (Flickr), reproduced under CC-BY-2.0

Commons committee takes "Digital Opportunity" ... to ask for more responses

A House of Commons Select Committee is taking the Hargreaves Review (and the UK government's responses to it) to the next stage, according to the Parliament website here:

The Business, Innovation and Skills Committee has announced its intention to conduct an inquiry into the Hargreaves Review of Intellectual Property and the Government’s response to that Review. 

The Inquiry will focus on: 

• The recommendations set out in the Hargreaves Review on Intellectual Property and the Government’s plans for the implementation of its recommendations.

The Committee will be reviewing the submissions made to the Hargreaves Review and requests that evidence be confined to points not already made in those submissions. 

The Hargreaves Review can be found at: http://www.ipo.gov.uk/ipreview.htm
The Government Response can be found at: http://www.bis.gov.uk/assets/biscore/innovation/docs/g/11-1199-government-response-to-hargreaves-review 

If you wish your evidence to remain confidential, please contact the Committee staff. 

Written submissions must be submitted by close of business on Monday 5 September and should be submitted in accordance with the guidelines provided here.

To refresh readers' memories, short summaries of Hargreaves's proposals can be found here and here. Responses from interested parties are noted here, here and here.

For the record, the Business, Innovation and Skills Committee consists of the Members of Parliament listed below.  It may be doing the members an injustice to say so, but quick click through their interests and expertise reveals little to suggest that they have any experience of, familiarity with or commitment to the world of online business, orphan works, copyright clearance and the like.

Member	Party
Mr Adrian Bailey (Chair)	Labour/Co-op
Mr Brian Binley	Conservative
Paul Blomfield	Labour
Katy Clark	Labour
Rebecca Harris	Conservative
Margot James	Conservative
Dan Jarvis	Labour
Simon Kirby	Conservative
Ian Murray	Labour
Mr David Ward	Liberal Democrat
Nadhim Zahawi	Conservative

After Hargreaves: further reflections

After all the Hargreaves hype and hullabaloo (see 1709 Blog posts here and here), further responses to the UK Government responses are fluttering down like leaves from early autumn trees.  Here are a few more copyright-specific responses:


The British Library

The BL: if ever there was a statue
crying out for a witty caption,
it must be this one ...

The BL has welcomed the Government’s response. According to CEO Dame Lynne Brindley,

“The British Library is delighted that the Government has recognised the importance of copyright in the digital age to education and research, and particularly welcomes the recognition of the need for legislation to ensure that hard won copyright exceptions are protected and cannot be overridden by individual contracts. 

Professor Hargreaves’ recommendations are important, as not only do they update many existing provisions in the law so they are fit for purpose in the digital age, but also strongly support innovation and scientific discovery for UK plc as is specifically the case around the proposal for text and data mining.”

Proposals to promote format-neutral research copying exceptions, streamlined rights clearance mechanisms, the digitisation of orphan works, text and data mining and digital preservation are all cited as having "an immediate benefit for research, life-long learning and teaching.


Eversheds (UK-based international law firm)

A media release from Eversheds' Neil Mohring opens with the news that, following a policy review by telecoms regulator Ofcom, the Government announced it was to drop plans to block websites that host copyright infringing material -- a key provision in the Digital Economy Act but not one that endeared the Act to internet service providers which never did like the prospect of having to shut down websites. Adds Neil:

“... it seems that the government is looking at other ways to achieve the same objective and ISPs will remain concerned about the injunction that the Motion Picture Association obtained against BT last week [noted by this blog here]. However the government has to deal with the issue of unauthorised copying if it is committed to the growth of the creative industries. There is little incentive for creators, particularly those in small businesses, if unauthorised copying is not addressed and measures such as the relaxation of the rules regarding parody are merely scratching at the surface".

Neil then turns to format-shifting which, he notes "will have little substantive effect overall. Format-shifting has been occurring for many years without action by the copyright owners, so the proposed changes will merely formalise the current position”.


Federation Against Software Theft (FAST)

FAST General Counsel Julian Heathcote Hobbins takes a positive overall view of the government’s response which, he stresses, shows that "the government clearly understands the importance of intellectual property to the growth of the UK economy and our position globally as a creative and innovative hub". However,

"The decision not to bring forward streamlined site-blocking sanctions to be enforced by Internet Service Providers is a damaging limitation on the arsenal available to tackle piracy. A variety of tools are needed for effective enforcement and this is a worrying retrograde step.The pirates just reposition these sites utilising the internet’s global structure in a game of cat and mouse".

In the same media releas, Beachcroft LLP partner Robin Fry, added that last week's NewzBin2 ruling

"makes it clear that software vendors will still be able to get direct orders against ISPs to block access to file-sharing websites. Such action is likely to be predictable and cost-effective but only after a number of successful applications have been brought where rights holders become familiar with the system”.

He adds that cost is such a significant factor for small and micro-sized organisations when deciding to press their cases that the government decision t drop site-blocking plans "only weakens their position".

FAST concludes by welcoming the principle of a Digital Copyright Exchange -- but it does not see how this proposal could apply to software.

Yeeeesssssssss! (yes, some more on the Response to Hargreaves)

Following on from Jeremy’s post earlier, and now that the news that UK Government’s very positive response to Professor Ian Hargreaves' review of IP law is out is not really news at all, I thought I would add some detail to the Response which, as we now know, seemingly accepts all ten of Professor Hargreaves’ recommendations.

The Government say that their goal is to have measures in place by the end of this Parliament that will realise the Review’s vision and deliver real value to the UK economy, and to the creators and users of Intellectual Property saying “the Government announced plans to support economic growth by modernising UK intellectual property laws. Ministers have accepted the recommendations made in an independent review which estimate the potential to deliver up to £7.9 billion to the UK economy”. You can read the response in full here (pdf download) http://www.ipo.gov.uk/ipresponse as well as a letter from UK Business Secretary Vince Cable to stakeholders saying that consultation will begin this autumn.

The Response covers a number of topics (I haven’t covered patents and design rights in this Blog) and even suggests a new name for the Patents County Court along with a new ‘small claims’ track for IP (something that may have come out of the SABIP review of IP law). The only seemingly negative response for content owners is that site blocking legislation will not be brought in, although in light of the decision in Newzbin2 this may not be of such concern. Anyway, to précis the Response, and using the Reponse’s headings:

“Intellectual Property is important to growth”
The Government accepts the Review’s overall conclusion that IP is important to growth and that IP laws are, in some cases, obstructing growth. The Government is particularly concerned to reduce barriers to creating viable IP-using small firms, whether in existing industries or in new niches. IP is intensely valuable to the UK; that value can be increased if we act effectively now and will decrease if we do not.

The IP framework is falling behind and must adapt”
The Government shares this concern. There is a constant need for the IP system to adapt to new forms of innovation, creativity and technology, but that need is now particularly marked in copyright because technology has made copying and communicating many works very easy and created opportunities for the widespread and efficient use of digital content. As the Review notes, the advent of 3D printing may herald a time where copying material objects becomes similarly straightforward. Cloud computing and the ‘internet of things’ are based on ever-increasing flows of data. There are implications here for privacy and security that go far beyond IP but have a bearing on future public policy, IP included.

“Evidence should drive policy”
Fundamentally, the Government agrees with not only the Review’s headline conclusion but also with its underlying critique: too many past decisions on IP have been supported by poor evidence, or indeed poorly supported by evidence To deal with the first issue, the Government has strengthened the IPO’s economics team and begun an ambitious programme of economic research with partners. The IPO will publish its research programme for the coming year, including work in response to the Review, in Summer 2011. The fundamental issue however is that key data is held by business and other organisations. IPO will work with those organisations to help them offer good-quality evidence; our challenge to them is to do so.

“A digital copyright exchange will facilitate copyright licensing and realise the growth potential of creative industries”
The Government agrees it is right to help develop effective markets in copyright licensing where they are not emerging spontaneously. We believe a Digital Copyright Exchange (Recommendation 3) has the potential to offer a more efficient marketplace for owners and purchasers of rights, as well as opening up new markets to creators who may not have previously been able to access them.

Consideration is currently being given to how this complex project is best taken forward, and by whom. The Government will announce these arrangements in due course. The person or persons commissioned to lead this work will be asked to:

- facilitate the creation of a viable financial model for the DCE;

- bring together industry partners and sectors of the creative world to create a framework for a distributed rights exchange and the necessary supporting systems to allow a functioning licensing system by the end of 2012; and

- report on progress, by the end of 2011

The Government will work to ensure that Crown copyright materials are available via the exchange and will encourage public bodies to do likewise.

“Further steps to modernise copyright licensing”

Cross-border licensing: The Government welcomes the Review’s identification of opportunities for UK licensing bodies in European moves to improve the operation of copyright licensing (Recommendation 3). An efficient and flexible cross-border licensing framework is essential to the creation of a single EU market for content that smaller firms can readily enter and succeed in. The Government welcomes the European Commission’s initiative in proposing a cross-border licensing framework and will work with UK interests and the Commission to develop proposals that are compatible with current effective licensing models in the diverse industries affected.

Orphan Works: There are opportunities too in respect of so-called orphan works (Recommendation 4). The Government agrees with the Review’s fundamental premise that it benefits no-one to have a wealth of copyright works be entirely unusable under any circumstances because the owner of one or more rights in the work cannot be contacted. This is not simply a cultural issue; it is a very real economic issue that potentially valuable intangible assets are simply going to waste. The Government will this autumn bring forward proposals for an orphan works scheme that allows for both commercial and cultural uses of orphan works, subject to satisfactory safeguards for the interests of both owners of ‘orphan rights’ and rights holders who could suffer from unfair competition from an orphan works scheme.

The role of collecting societies: Copyright collecting societies play a major role in copyright licensing. The Government sees collecting societies as an important part of the UK’s future success whose status would be reinforced by visible adherence to good practice. Like the Review (Recommendation 3), the Government has heard a range of concerns about the operation of copyright collecting societies in the UK and elsewhere: from members on questions of transparency and governance, and from licensees concerning what they see as heavy-handed, misleading or unfair practice in charging for usage of works. The EU is looking at the need for a common standard within Europe, which the Government welcomes; such transparency would be in the interest of UK creators and rights holders. If the UK is going to be a leader in European licensing, we will need also to be a leader in good practice. This is particularly true if we are to introduce an orphan works or extended collective licensing regime. The Government will publish minimum standards for voluntary codes in early 2012 and consult with collecting societies on
their implementation.


“Copying should be lawful where it is for private purposes, or does not damage the underlying aims of copyright”
There is a fundamental role for copyright in providing appropriate incentives for the creation of valuable works. The Government has no intention of prejudicing this role, on which much value for the UK depends. We nonetheless believe the Review is right to identify activities that copyright currently over-regulates to the detriment of the UK, and to propose changes to tackle the problem (Recommendation 5). the Government agrees with the Review’s central thesis that the widest possible exceptions to copyright within the existing EU framework are likely to be beneficial to the UK, subject to three important factors:

- That the amount of harm to rights holders that would result in “fair compensation” under EU law is minimal, and hence the amount of fair compensation provided would be zero. This avoids market distortion and the need for a copyright levy system, which the Government opposes on the basis that it is likely to have adverse impacts on growth and inconsistent with its wider policy on tax.

- Adherence with EU law and international treaties.

- That unnecessary restrictions removed by copyright exceptions are not re-imposed by other means, such as contractual terms, in such a way as to undermine the benefits of the exception.

The Government will therefore bring forward proposals in autumn 2011 for a substantial opening up of the UK’s copyright exceptions regime on this basis. This will include proposals for a limited private copying exception; to widen the exception for non commercial research, which should also cover both text- and data-mining to the extent permissible under EU law; to widen the exception for library archiving; and to introduce an exception for parody.

“Building future-proofing into the legislative and regulatory framework…”
The Review recognises that the UK’s scope for action on copyright exceptions is limited. It makes the case for broader changes at the EU level in order to enhance economic growth now and – through building in adaptability to new technologies – in the future. In the Review’s judgement, and the Government’s, there is a need for a wider set of exceptions at EU level to achieve this, again without prejudice to the provision of appropriate incentives for creation of works (Recommendation 5). The Government will aim to secure further flexibilities at EU level that enable greater adaptability to new technologies including use of data for research. We support a review of relevant EU legislation to this end and will be in dialogue with European partners to identify how this can best be achieved. IPO will make the removal of EU-level barriers to innovative and valuable technologies a priority to be pursued through all appropriate mechanisms.

“Effective enforcement requires education, effective markets, an appropriate enforcement regime and a modern legal framework…”
An effective IP enforcement regime – and the UK’s is one of the best in the world – is a necessity for any advanced economy. The Government shares the Review’s perspective that intellectual property rights (IPRs) cannot fulfil a useful function unless they are enforceable:
- There is a fundamental reason to ensure that valuable IPRs are enforceable, and
- where society - both users and owners - acknowledges in practice that the enforcement of rights is uneconomic or unreasonable, for example over private copying, these should ideally be taken out of scope of the IP system through properly limited exceptions. Otherwise respect for legitimate enforcement is diluted.

With the Reponse saying:

- Action against IP crime will remain a priority
- Serious organised crime will be the leading priority within finite public resources
- Content owners should continue to inform, educate and guide consumers
- Government and public sector enforcement bodies will work with industry, with a particular focus on supporting efforts to develop new legitimate digital markets, tackling organised IP crime and enhancing the availability of high-quality evidence.
- it would be desirable for Ofcom to begin establishing benchmarks and data on trends in online infringement of copyright as soon as possible.
- The Government is publishing alongside this document a cross-government IP Crime Strategy that commits us to better coordinated action to make the most of scarce resources, including on online infringement of copyrights and trade marks. Progress on the strategy will be reported in annual IP Crime reports from summer 2012 onwards.
- The Government is also publishing today a statement setting out how it plans to move forward with implementation of the Digital Economy Act initial obligations, following a successful defence of the Act’s provisions in judicial review. Following the judicial review ruling, the Government is removing the obligation on internet service providers (ISPs) to contribute towards the costs of Ofcom and the independent appeals body in setting up and administering the regime (bit not other costs). The Government has received further advice from Ofcom on the potential costs of the DEA appeals system, which we are publishing today. In order to minimise the risk of the system being disrupted by vexatious or non bona fide appeals, we are introducing a £20 fee for subscribers to appeal. The fee will be refunded if the appeal is successful.
- The Government will, subject to establishing the value for money case, introduce a small claims track in the Patents County Court for cases with £5000 or less at issue, initially at a low level of resource to gauge demand, making greater provision if it is needed. It may also rename the Court the Intellectual Property County Court.
- Following advice from Ofcom - which the Government is publishing today - site blocking will not be brought forward at this time. However, the Government is keen to explore the issues raised by Ofcom’s report and will do more work on what other measures can be pursued to tackle online copyright infringement.

“Creating an IP framework which adapts to changes in technology and markets requires changes to the IPO…”
The Government is committed to policies based on sound evidence and to the transparent operation of public bodies. The Review found past decisions on IP did not always live up to this standard, apparently influenced by strong lobbying from interested parties. The Government believes it is important to avoid not only the fact but also the appearance of bias and therefore believes there is a good case for change to the IPO that will support more evidence-based decisions in future. The Government will explore options for a future role for IPO that involves a strengthened focus on innovation and growth, a greater emphasis on publicly available evidence, enhanced ability to promote competitive markets whilst retaining Ministerial oversight of IP policy; and will bring forward these proposals by the turn of the year (i.e. late 2011 or early 2012).

http://www.ipo.gov.uk/ipresponse-full.pdf

"Yes, yes, yes ...": the UK Government responds to Hargreaves

Today's proposals: more
'ups' than 'downs'?

I've not yet had a chance to read carefully through today's UK government's response to the Hargreaves Review, Digital Opportunity, which was published this May.  The response is the subject of a themed web page on the UK's Intellectual Property Office website, which also gives details of a separate proposal for improving the government's so-far inadequate approach to dealing with IP crime. The response document is 24 pages in length, covering areas of IP as well as copyright.  A short summary of its copyright proposals is contained in this morning's press release:

"Sweeping intellectual property reforms to boost growth and add billions to the UK economy

The Government today announced plans to support economic growth by modernising UK intellectual property laws. Ministers have accepted the recommendations made in an independent review which estimate a potential benefit to the UK economy of up to £7.9 billion.

The recommendations were made in May 2011 by Professor Ian Hargreaves in his report, - ‘Digital Opportunity: A review of intellectual property and growth’. Modernising intellectual property law is a key action from the Government’s Plan for Growth, published in March alongside the Budget, which will help create the right conditions for businesses to invest, grow and create jobs. ...

Among the recommendations that have been accepted are:

• The UK should have a Digital Copyright Exchange; a digital market place where licences in copyright content can be readily bought and sold. The review predicted that a Digital Copyright Exchange could add up as much as £2 billion a year to the UK economy by 2020. A feasibility study will now begin to establish how such an exchange will look and work. The Government will announce arrangements for how this work will be driven forward later in the year. 

• Copyright exceptions covering limited private copying should be introduced to realise growth opportunities. Thousands of people copy legitimately purchased content, such as a CD to a computer or portable device such as an IPod, assuming it is legal. This move will bring copyright law into line with the real world, and with consumers’ reasonable expectations. 

A copyright exception may allow this parody,
but it's not much comfort if there's still
a risk of trade mark or design infringement 

• Copyright exceptions to allow parody should also be introduced to benefit UK production companies and make it legal for performing artists, such as comedians, to parody someone else's work without seeking permission from the copyright holder. It would enable UK production companies to create programmes that could play to their creative strengths, and create a range of content for broadcasters. 

• The introduction of an exception to copyright for search and analysis techniques known as 'text and data mining'. Currently research scientists such as medical researchers are being hampered from working on data because it is illegal under copyright law to do this without permission of copyright owners. The Wellcome Trust have said that 87 per cent of the material housed in the UK's main medical research database is unavailable for legal text and data mining, that is despite the fact that the technology exists to carry out this analytical work. 

• Establishing licensing and clearance procedures for orphan works (material with unknown copyright owners). This would open up a range of works that are currently locked away in libraries and museums and unavailable for consumer or research purposes. 

• That evidence should drive future policy - The Government has strengthened the Intellectual Property Office's economics team and has begun a programme of research to highlight growth opportunities. One report has already shown that investments made by businesses in products and services that are protected by intellectual property rights (IPRs) are worth £65 billion a year. ..".

The 1709 Blog expects that it won't be long before readers' comments will be arriving. A follow-up post is planned, bringing news of some reactions from interested parties on all sides of the continuing copyright debate.

Early responses to Hargreaves: at least the Pirates are pleased ...

But is it the Ultimate Wisdom?

The content of Digital Opportunity, as the Hargreaves Review is now to be known, has been swiftly and efficiently publicised by a combination of social, asocial and antisocial media to the point at which it has hardly even news any more. A handy summary of its recommendations can be found here.  This post focuses on early responses to it.

Mark Owen, head of the IP practice at media and entertainment law firm Harbottle & Lewis, says:

"Most of the sectors the report affects, whether creators, owners or users of rights will find things to quibble with [Given the tension between opposing stakeholder interests in every area of copyright, this might be expected]. Some of its proposals are not feasible, or are not much more than good intentions. It is also determinedly non radical, which will disappoint some who expected big immediate changes. ... [T]his is a prospectus, which lays out the scope of what should be looked at, but with plenty of scope still for detailed policy consideration and argument. And the report's approach recognises that simplistic broad strokes are difficult to make in the complex, and interconnected world of IP.

The people who face the most challenges from the report are the government, as Hargreaves repeatedly makes the point that the changes he advocates have to be brought about through serious governmental effort and application [This should surely have been expected in a field which is heavily overlaid with existing legislation, much of which is or should be in accord with international or European norms]. This may not be what the government were after and much of this work will be costly.

When David Cameron set the review up he made much of the benefits he saw from introducing a fair use right and cynics detected in this an attempt to appear pro innovation without the government having to do much, in particular not spend money such as through tax breaks. As plenty of commentators said at the time, EU law would not allow this. Hargreaves has echoed that and dismissed the possibility of a fair use law. Instead he has listened and listed a large number of less radical changes government must consider.

The changes he suggests to basic copyright law are relatively minor. The suggestion of a format shifting right was widely predicted, not least as the previous government had said it would introduce such an exception in 2006 but never managed to do so. A parody right is also given another outing despite having recently been considered in detail by a government review and rejected [f parody is to be reconsidered, it seems silly to consider it in the context of copyright alone, without taking note of the possible need to do likewise in trade mark and design law]. Perhaps the most important idea is that the UK should introduce the same exceptions to copyright as the rest of the EU. Bringing our law more into line internationally is worth considering. From the perspective of important trading partners such as the US and the EU much about UK copyright law seems odd and out of step, and this costs us. ...

Will the Review end up making any difference? The Gowers Review of IP in 2006 was also well-written and thought out [I'd contest both of these propositions, particularly the latter -- Gowers was peppered with oddities, as many commentators pointed out at the time], with many interesting proposals. Many of the easy ones were eventually implemented but plenty were ignored by government. Hopefully this time the government will do more and will learn from the Gowers experience, so we are not having yet another trumpeted review of IP in 5 years time."

Ilya Kazi, a partner in the patent and trade mark attorneys Mathys & Squire, describes the Review as a "missed opportunity", adding:

"Many of the recommendations of the Hargreaves review are sensible and represent a positive step towards renewing outdated intellectual property and copyright laws that until now have in some areas been restrictive and unworkable.

“However, the review has ... fallen short of David Cameron’s specific vision of creating an environment where companies like Google can flourish [If you listen carefully, you can hear the sound of thousands of readers sighing "Thank heavens for that!"].

“In particular the review supports the current level of protection for technology-related patents in the UK and recommends that we should resist broadening the scope of what can and cannot be protected [but let's not forget that, even for 'non-protected' software inventions, a measure of legal protection through copyright still exists]. It is precisely because of the more open policy in the US that it has been much easier for internet and technology businesses to safeguard their ideas and in turn access investment [I suggest here that this line is at best unproven and at worst a fallacy: it's the relatively loose competition laws which might make the difference]. 

In my view, some more radical thinking in the way we approach protection for the software industry is needed to ensure the UK becomes an ideal location for technology entrepreneurs. Unless we address this issue, the UK will never foster the next Google.”

The official Marks & Clerk early response to the Review, from partner Simon Mounteney, makes the following points:

"The aims of review are laudable and it rightly identifies some of the pressing problems with our current IP regime. It is well-documented that aspects of our IP laws are out of sync with the digital age, and that these problems can act as a barrier to innovation ["can" is not the same as "do".  Copyright owners identify a high level of unauthorised use that cannot be easily detected and which is uneconomical to enforce, which would suggest that the law is widely ignored and rarely enforced. If this is the case, it presumably isn't acting as a barrier to very much at all]. ...

 Britain ’s IP laws are so dependent on myriad international and European treaties that unilateral reform of our copyright and patent systems is impossible to achieve. Real reform will need to be pursued at a European or international level, and many of the proposed solutions will need significant attention to detail in order to become viable [cf the comment earlier about how we should bring UK law into line with the rest of the EU ...]. 

His partner, solicitor Gregor Grant, adds:

"Copyright licensing is a minefield. A single work can have several rights owners, each owning different slices of the pie. The digital revolution has made it yet more difficult for anyone who wants to broadcast - or even play - works such as music [Hasn't the digital revolution made it easier to broadcast or play? The difficult thing now, as before, is to do it legally]. The problem is self-evident; the solution is not. The report identifies and analyses the problem. It points a finger in the direction of a solution, which is a centralised digital registry, allowing people to use copyrighted works for a fee - a bit like a scaled-up version of the Performing Rights Society but not limited to music alone. But it does not hand out a packaged solution. These days, no national government can hope to do anything significant with copyright law unilaterally. There are simply too many international conventions, plus the fact that much of European copyright law has to adhere to a common format. .. ".

Moving now to industry, Katja Hall (Confederation of British Industry Chief Policy Director) said:

"... The ... voluntary Digital Copyright Exchange ...should make it easier for businesses and individuals to legitimately access and pay for copyrighted material, while allowing rights owners to retain control of how their content is used and sold. However, robust copyright protection should be available to all, and preferential enforcement action for material registered on the Digital Copyright Exchange must be avoided [I'm not sure what this means. Can anyone clarify or explain?]. Instead the Exchange should be a collaboration between content creators and the technology sector [ditto]. 

Enforcement of IP rights, both at home and abroad, will remain one of the biggest issues for firms in the knowledge economy. Those firms will now be looking for reassurance from the Government that it will champion international enforcement, which is so critical to an export-led economic recovery.”[How interesting: the CBI, which represents industries per se rather than rights-owners, seems more interested in enforcement than in access and use]

Chris Marcich, President and Managing Director of Motion Picture Association, wasn't going to say anything that might compromise the six major film studios in the MPA's stable represents:

“... We welcome the assurances regarding better enforcement at home and abroad and the measures to assist in rights clearance where there is market failure but we are concerned about a number of recommendations which will have an impact on the film industry including proposals related to exceptions on copyright and linking the Digital Copyright Exchange to enforcement.

“We look forward to engaging with the Government [does that mean the now-discouraged practise of, er, lobbying?] on these proposals to ensure that the vital safeguards provided by IP protection, which give the creative sector its value, are maintained and that any changes are carefully considered in the context of their potential impact on the market place.”

Another rights-based body, the Creative Coalition Campaign (CCC), speaks for some 30 leading organisations in the media, games and sport sectors, among others. Christine Payne (CCC Chair) said:

“We are delighted that Professor Hargreaves has listened to the creative sector and has rejected moves to change the fundamental principles behind UK copyright law which would have damaged investment in the UK ’s creative industries. The decision to omit the US style ‘fair use’ system is recognition that the UK already has a flexible copyright framework that facilitates fair dealing.  ...[W]e are keen to work with the Government to ensure that any changes are business led not regulatory fixes." [The two are not mutually exclusive: business-led is where it comes from; regulatory fix is what it is]

The warmest of the early responses came from the Pirate Party UK, which endorsed the Review as far as it went and mourned the fact it didn't go further:

" ...the Pirate Party agrees that copyright and patents should 'make not break markets' [Well, that's something we all agree on] and that the rights of innovators and artists should be balanced with those of the public to enjoy such work.  The Party agrees with the review when it states that "businesses too need change, in the form of more open, contestable and effective global markets in digital content". ...

The Party is disappointed, however, that the review has been held back from proposing any real reform to deal with the extensive problems that current copyright and patent frameworks pose, nor sought to redress the imbalance between the rights of creator and the needs of society.[It would be good to identify and explain those needs.  Like SMEs, society is something on whose behalf many people speak, but who lack any apparent mandate to do so]  While the Review has clearly made progress in addressing some of the symptoms of our broken copyright and patent system, the Pirate Party believes that we need a more radical rethinking of the role of copyright and patent laws in the digital age".