For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Wednesday, 18 May 2011

Hargreaves in the wild: The Top 10 Recommendations

Drum-roll please: the Report that we have all been waiting for since a cold November morning on a roundabout in Shoreditch has entered the wild. Entitled “Digital Opportunity”, complete with a picture that Adobe tells me is “cover image showing digital studio” (although it fails to mention that this has been mixed with what looks like a photo of the inside of a PC - still, it beats a lightbulb), the Report weighs in at 130 pages, split into 11 chapters and four appendices.


The work of another Hargreaves –
which is the more apt descriptor of the report?
The choice is yours…
For those short of time, the Executive Summary begins on page 3 and ends on page 9. There are 10 recommendations (pages 8 & 9) running the gamut from International Priorities through Copyright issues to Patent Thickets and the Enforcement of IP.

The Executive Summary notes that:
“Taken together, the Review proposes a clear change in the strategic direction of IP policy direction designed to ensure that the UK has an IP framework best suited to supporting innovation and promoting economic growth in the digital age. This change is modest in ambition and wholly achievable.

The Review’s specific recommendations would support growth of the UK’s increasingly intangibles intensive economy. This requires:
  • an efficient digital copyright licensing system, where nothing is unusable because the rights owner cannot be found;
  • an approach to exceptions in copyright which encourages successful new digital technology businesses both within and beyond the creative industries;
  • a patent system capable of preventing heavy demand for patents causing serious barriers to market entry in critical technologies;
  • reliable and affordable advice for smaller companies, to enable them to thrive in the IP intensive parts of the UK economy;
  • refreshed institutional governance of the UK’s IP system which enables it to adapt organically to change in technology and markets.”
So what, I hear you ask, are these recommendations? Well, apart from a couple of rather bland statements that: the “Government should ensure that development of the IP System is driven as far as possible by objective evidence”, as opposed, for example, to simply making things up; and “The UK should resolutely pursue its international interests in IP, particularly with respect to emerging economies such as China and India, based upon positions grounded in economic evidence”, the unified EU Patent Court gets a significant endorsement – the Report stating that the Government should “attach the highest immediate priority” to achieving this aim.

Copyright is, as expected, singled out for more extensive developmental opportunity, to coin a phrase. Appointment of a senior figure to oversee the design and implementation of a “cross sectoral Digital Copyright Exchange” framework is suggested (nominations in the comments section please), as is Government support of moves by the European Commission to establish a framework for cross border copyright licensing.

The work of another Hargreaves –
which is the more apt descriptor of the report?
The choice is yours…
Orphan works are also included in the review, with suggestions that the Government should establish extended collective licensing for mass licensing of orphan works, and a clearance procedure for use of individual works. Copyright clearance clearly being the name of the game as far as the Report is concerned.

Continuing the Copyright theme, the Report also suggests that the “Government should deliver copyright exceptions at national level to realise all the opportunities within the EU framework, including format shifting, parody, non-commercial research, and library archiving. The UK should also promote at EU level an exception to support text and data analytics.” For those that are wondering, the wholly fictitious Parody Act of 1852 gets nary a mention (much to Merpel’s consternation).

In the Patent field, the problem of thickets and other obstructions to innovation are the focus of the Report’s ire. With this in mind, the Government is advised to take “a leading role in promoting international efforts to cut backlogs and manage the boom in patent applications by further extending “work sharing” with patent offices in other countries. It is also advised to be vigilant in ensuring that “patents are not extended into sectors, such as non-technical computer programs and business methods, which they do not currently cover, without clear evidence of benefit” – ‘not just for the sake of it’ is a theme running throughout the Report. Finally on the patent side of things, if the Government acts on the proposals then it looks like fees are to rise, as the Report advises the Government to:
“investigate ways of limiting adverse consequences of patent thickets, including by working with international partners to establish a patent fee structure set by reference to innovation and growth goals rather than solely by reference to patent office running costs. The structure of patent renewal fees might be adjusted to encourage patentees to assess more carefully the value of maintaining lower value patents, so reducing the density of patent thickets.”
Designs are not neglected either. The Report suggesting that the IPO should, in the next 12 months, “conduct an evidence based assessment of the relationship between design rights and innovation, with a view to establishing a firmer basis for evaluating policy at the UK and European level”.

The work of another Hargreaves –
which is the more apt descriptor of the report?
The choice is yours…
Despite coming at number 8 in the list, the section on Enforcement of IP rights is noted to contain some “urgent” recommendations. The enforcement regime set out in the Digital Economy Act 2010 (DEA), that much-beloved piece of legislation swept out of Parliament’s door in the wash-up just before its dissolution last year, is targeted for specific monitoring when it comes into force next year. Hargreaves noted that this is “urgent and Ofcom should not wait until [the provisions enter into force] …to establish its benchmarks and begin building data on trends.” The Report also suggests the introduction of “a small claims track for low monetary value IP claims in the Patents County Court” in order to support rights holders in enforcing their rights.

The final two recommendations concern suggestions that the IPO seek to facilitate improvements in the accessibility of the IP system for small companies, and that it “be given the necessary powers and mandate in law to ensure that it focuses on its central task of ensuring that the UK’s IP system promotes innovation and growth through efficient, contestable markets”, including the power to provide “statutory opinions where these would help to clarify copyright law.”

If the recommendation is followed, we can also expect to see an impact report on the measures advocated by the review at some point in 2013.

Summary over, this Kat is now off to read the report in a little more detail.

Update: as the IPKat's friend Mary-Ellen Field has pointed out, the fictitious Act of 1852 is not the only thing to have nary a mention in the Report: she notes that "the words 'trade' and 'marks' are not mentioned" either.

8 comments:

Conor said...

"Well, apart from a couple of rather bland statements that: the “Government should ensure that development of the IP System is driven as far as possible by objective evidence”, as opposed, for example, to simply making things up"

I wouldn't call that a bland statement - a lot of policy in the past has quite clearly just been made up to suit Disney and their ilk. Having evidence based policy would be a nice change.

Phil said...

He wants academics like him to have more say, over lobbyists. Makes sense, but there's definitely a conflict of interest!

Little Miss Quick said...

And in fairness to the report, the potential for undue influence from lobbyists' "evidence" is acknowledged (s2.13)

Anonymous said...

Surely the lifting of an entire musical work (Empire State of Mind), plus a large chunk of a literary work (i.e the lyrics of the same ditty), and commercialising the result, cannot be regarded as something that should fall outside the scope of copyright law simply because it is a "parody"? Even the 1852 Act didn't go that far!

Anonymous said...

Very underwhelming.

With this digital copyright exchange idea, the amount of work required to add metadata to existing corpus of copyright works will be huge. As will the costs of establishing and running a database large enough to hold all this information.

Simon said...

But you would have to admit that the Newport State of Mind parody was excellent! The "You're not from Newport" version is even better. Tidy, like.

Serena Tierney said...

It's a bit concerning to see that Prof Hargreaves regards 'orphan works' as all copyright works that 'cannot be found by a search of the databases involved in the proposed Digital Copyright Exchange'. That seems to suggest that:
a) registration of all copyright works will in practice be mandatory (although Prof H says it would be 'genuinely voluntary' #4.34) in order for the owner to be able to enforce the copyright and not have its work deemed to be an orphan ( can't see how this will reduce the cost of IP protection/enforcement for anyone - least of all SMEs who will now have to pay registration fees for copyright);
b)the requirement will not only be for all future works but all existing ones as well (any chance of a discount for bulk here? It will be needed after the costs of tracking down all existing copyrights in large organisations);
c)the proposed Digital Copyright Exchange will cover all copyright works regardless of sector or 'creativity' of content. (I'm sure software developers and those writing technical manuals will welcome this move...).

And is there an inconsistency between the statement that 'we are not advocating that Government should itself create this Digital Copyright Exchange' (#4.30) and the proposal that it should 'fund the costs of establishing the exchange(including development of IT) - possibly from IPO reserves' (#4.34) and then the IPO should run it (#4.37)? (I'm not sure that even the £55m in IPO reserves will stretch to the IT infrastructure required here).

There may be an idea worth exploring here for 'the creative industries' - or at least film and music - providing the industries that benefit from it are willing to meet the costs. But that will require a much scaled-down proposal from the one in this report.

Anonymous said...

Interesting that the section on patent backlogs [6.10] does not mention the impact of examining staff reductions that have been made over the last 2 years to balance the books and return a dividend to the treasury. This has been so effective that there is now a reserve that seems likely to be earmarked for the BIS to use for high-profile projects such as implementing Hargreaves rather than ensuring that the staffing levels are adequate. [source: steering board minutes]

The costs of implementing Hargreaves will therefore presumably fall on the shoulders of users of the IP system, since the IPO's agency status means that its sole sources of income are the fees paid by its customers and its share of EP renewal fees.

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