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Sunday, 10 July 2011

Members of Parliament debate IP

The House of Commons listens in hushed silence
to a comment from the Minister for Business, Skills,
Education, Skills, Innovation and Business ...
Underwhelmed was what the IPKat was by what he hoped would be a tidal wave of excited responses to his request for a report on last Thursday's House of Commons debate on intellectual property and the Hargreaves Review.  He was however delighted to receive this piece, from the excellent Lisa Stevens who, alerted by last week's Katnote, was let out of the office for the afternoon in order to pen this handy piece for last Friday's Mayer Brown International LLP Legal Update. Annotated by the IPKat and Merpel, it reads like this:
"UK MPs discuss the Hargreaves Review

At yesterday’s parliamentary debate on IP and the Hargreaves Review, John Hayes, the Minister for Skills [his full portfolio is Further Education, Skills and Lifelong Learning, says Merpel, which is why his photo looks so glum] announced that the Government’s response to the Hargreaves Review of Intellectual Property and Growth would be released within a month. The debate allowed MPs to voice their thoughts on the proposals put forward by Professor Ian Hargreaves in his report released in May 2011 and on the UK’s IP regime in general. It was organised by Pete Wishart MP who is not only the Scottish National Party’s Westminster Spokesperson for Culture, Media and Sport, but also a member of Scottish folk rock group Runrig. As this was a House of Commons event, the Minister for IP [her full portfolio is Business, Innovation and Skills, says Merpel, and Thursday marked another of her official Wallace & Gromit engagements, which is why her photo looks so happy] was unable to participate as she does not sit in the House of Commons.
The main take-away messages from the debate are set out below:

Evidence-based regulation. MPs agreed with Hargreaves’ suggestion that future regulation should be based on evidence as opposed to lobbying by special interests. However, a number of MPs voiced concerns about Hargreaves’ classification of evidence provided by industry as “lobbynomics” [This point can't sufficiently emphasised, says the IPKat. Evidence does not cease to be evidence by virtue of the fact that it is provided from a partisan source. For example, we could rely less on evidence related to the scale of counterfeiting that comes from victim companies if the folk who do the counterfeting were to submit their own figures as to how much they're copied: but this isn't about to happen]. They want industry expertise to be used and industry to take a leading role in any reform of the IP regime. (However, this may be a challenge given the remark by Ian Lucas MP (Parliamentary Under Secretary for skills in the last Government) that some of the members of Government responsible for our IP regime have weak industry contacts.) Mr Wishart also highlighted the risk of dismissing evidence that doesn’t say what you want it to.

Digital Copyright Exchange. MPs were uncertain about what exactly Hargreaves had in mind when he discussed a Digital Copyright Exchange [On this and other Hargreaves  proposals see comments here and here. To be fair, says the Kat, Hargreaves wasn't expected to provide the degree of detail which will make or break this proposal if it is ever to be adopted]. They agreed that a “one-stop-shop” for all types of copyright protected works was a step too far and ignored the progress already made by industry in putting in place sector-based exchanges and databases. They suggested that a better approach would be to establish a central information source which would tell people about the different collecting societies and exchanges that already exist and which would explain how to go about seeking permission to use a particular type of work. Responding to strong concerns from MPs, the Minister for Skills confirmed that any mechanism put in place would be entirely voluntary and that creators would not be penalised for non-participation as the Hargreaves Report had seemed to suggest.

Hargreaves’ proposal that “Government should appoint a senior figure to oversee [the Exchange’s] design and implementation by the end of 2012” was discussed. Most MPs agreed that industry should lead this and other developments and that any “industry champion” appointed by the Government should act as a form of project manager/consultant. Mr Lucas suggested that the Digital Copyright Exchange was a matter on which the Creative Industries Council should take the lead. (The Government announced the creation of the CIC last March, in the Budget speech [is it in existence, wonders Merpel, who just doesn't seem to have found it yet ...?]).

Exemptions. Mike Weatherly MP (European VP of the Motion Picture Licensing Company and presenter of a “House of Rock” show on local radio) took a pro-rights-owner approach. He said that the Government should think long and hard [in these days of instant thought and soundbites, 'long or hard' is as much as we can hope for] before providing for any new exemptions because they deny a creator his or her property rights. With regard to text and data mining, he pointed out that search engines already did this on a commercial basis and he could not see a case for making their lives easier [This is a subject that might qualify for a separate debate]. He argued that creators should be adequately compensated for use of their works in parodies, rather than there being a new parody defence. However, he thought that an exemption to facilitate archiving should be implemented, to assist organisations such as the British Library and also said that format shifting should be made legal. Many other MPs spoke in favour of a levy for format shifting, such as the one placed on copying devices in some other European countries. Many also expressed relief that Hargreaves did not propose a US-style fair use regime".
Thanks Lisa, for this terrific note, says the IPKat.  Merpel's a bit suspicious, though. She says either British MPs have become more sensible in their discussions of IP or all the daft stuff she hears them spouting outside the House has been edited out to spare their blushes [this is an evidence-based assertion -- readers may recall David Lammy MP's comments about the legal requirement to rename his favourite football team here].

6 comments:

Gentoo said...

Like many people of a certain age I have purchased and repurchased the same recording (I have one specific work in mind) - vinyl (several times due to wear and tear), CD, CD released with tracks in the right order, CD from restored tapes, 24bit). I'm sure if I could ever find the complete licence agreement I have no rights. However if there is going to be a levy on format shifting, should there be a commensurate licence refund for new format purchase (e.g., an exchange scheme)? Or, if one irreversibly damages a CD or similar a refund of a portion of the licence fee?

If not, why not?

Maxine Horn said...

Humm... it would appear that this large hot potato is being thrown over the wall to the as yet, not fully set up Creative Industries Council. Merpel - a man with more information on the status of the CIC can be found at darren.holness@culture.gsi.gov.uk

A Digital Copyright Exchange DCE (or more than one as it is now being stated) should be industry led. I don't disagree with that suggestion.

See our own original response to the Hargreaves Review recommendations http://www.creativebarcode.com/newsitem?item=34

Creative Barcode would happily shoulder an industry-led DCE for our faction of the creative industries, in collaboration with other such as ACID but so long as Government provide the financial means to enable it to happen quickly and in a robust way.

Forbes.com already cited CB as the first permission based DCE - although I think we can achieve a lot more to take it up to another level.

I will be at an IPAN meeting on 13/07 which current IP Minister Baroness Wilcox is attending.

I will take the opportunity to ask the all important question regards government £ support to enable the private sector to deliver on the DCE recommendations so that they don't have to.

If I get a chance to do that I'll let IPKAT know what the response was.

Anonymous said...

I am concerned that in this supposed evidence based approach that there seems little discussion on quality of evidence and what weight to give it.

this may seem obvious to lawyers (I would hope) but this doesn't come across in the politicians, or industry, statements.

Anonymous said...

Is it me, or is it beginning to look like this review will be debated over and over again, and in the end, after all the arguments have been somewhat exhausted, everybody will simply pack their filed and go, leaving next to nothing done.

Ron said...

I understood from a recent Herschel Smith lecture that the collecting societies had given undertakings that they would not take action against anyone who format-shifted any of their own legitimate recordings. This is akin to the existing voluntary agreements not to demand royalties for public performance of copyrighted works used in the course of divine worship. To that extent, legislation to permit format shifting seems unnecessary.

John Mitchell said...

Your post summary sadly suffers from the same main failure as the Hargreaves Review itself. Although it was originally billed as a Copyright Review and sent out for consultation from the "Copyright Directorate" it, rather like Wallace and Gromit, was remoulded at last minute into a review of IP. This meant that the few who spotted the term IP realised this theoretically covered other IP subjects such as patents and trademarks and were forced into a response after checking with Professor Hargreaves that it had widened considerably. The Terms of Reference indeed were far broader than "Digital Opportunity" so it appears even the panel failed to notice what they were supposed to be considering such as access to justice for SMEs. Indeed Professor Hargreaves admitted at the recent Westminster Legal Forum that he had run out of time and had not finished his work on patents - but still published. The Sunday Times [yesterday] surely cannot be right when it writes about No 10 being too close to Google and the Hargreaves review aimed at meeting the needs of Google? Or as one review respondent put it "Who cares what Google wants?"

In the parliamentary debate on Thursday, your reviewer, possibly submerged by the riveting copyright exchanges, may not have noticed the points made by Lorely Burt MP. Ms Burt turned the attention of the debate to patents and the woeful job that Hargreaves had made of dealing with the issues raised by those Hargreaves noted as the main innovators in the UK - the SMEs. She started by pointing out that Hargreaves had said that patents were more important to business than copyright and that patent enforcement was more of an issue than copyright enforcement thus raising the obvious question as to Hargreaves less relevant focus on copyright. She complained about the make-up of the panel as not having any SMEs within it and thus representing the minority. She bemoaned the failure to adapt the review and even the failure to actually list and show the submission from the national SME Innovation Alliance ('The Economic Failure of the Patent System'). She went on to note how the maximum damages now available with the PCC make it 'a bargain' for corporates to infringe in the UK. She added that the review failed to consider the real difficulties SME in particular face enforcing IP abroad which affects exports and is thus highly relevant to growth and job creation.

Indeed, the Minister's unhappy look may have come from the furious notes obviously being passed to him from the people who had really done the review, the UKIPO. Ms Burt had compared the the use of the term 'independent' in conjunction with a team from the UKIPO with Rebekah Brooks (Wade) reviewing News International. Having had to admit that the team had indeed received the SME Innovation Alliance submission with the odd excuse that it was "received informally rather than through the official channels" [it was sent and received by Professor Hargreaves leading this so-called independent review] Ms Burt was offered a meeting with the Minister for IP together with the Minister for Universities and Science plus the Under-Secretary of State for Culture, Olympics, Media and Sport for good measure. Such was the embarrassment. No-one else got any solid commitments apart from Government promising to respond within a month.

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