Copying without infringing: conference report 4

The final paper on the "Copying Without Infringing" programme today was delivered by Harbottle & Lewis solicitor Mark Owen, who is no stranger to the blogosphere (see here and here). Speaking on Where should our IP laws come from?", Mark tackled the copying-without-infringing theme from the legislative angle, where lawmakers must find the right point of balance between IP producers, consumers and increasingly powerful intermediaries.

IP suffers from a lack of leadership ...

Pointing to the transient nature of our current position, where the new technologies and their impact are still being discovered, it is unlikely that we will find an ideal solution immediately.  What is plain, though, is that only central government is big enough to address the global picture and there are also lots of loose ends that are too small for anyone to bother with.  But how much of the administrative and enforcement side of IP specifically has to be done by government?  With so many public and private inputs, there is a good argument for an IP Tsar to be appointed in order to coordinate them -- in contrast with the four UK ministers who have, to date, achieved nothing between them.

If legislative activity in the UK is slow, it's even slower in the European Union and beyond, in the international sphere.

British judges have a proud
record for knowing the score ...

On the judicial side, the standard of court decisions on IP is generally high, if expensive.  The British tradition of reasoned, narrative judgments is greatly valued, though there is always a temptation for judges to fit the cases to match their world view; some seek to stretch the cases before them in order to address their needs. Mark reviewed a wide spread of IP judgments, looking at the policy issues raised in them and the manner in which the judges had made their preferences felt.

Mark also raised the extent to which more informal or voluntary arrangements such as codes of practice and domain name dispute resolution programmes can play a part.  He painted a positive picture of their potential benefits in terms of speed, cost and lower emotional commitment.

Moving on to recent government initiatives (to make the country "fit for the digital age"), including the Hargreaves Review, Mark faced no hardship in trying to show a lack of joined-up thinking. The gaps which Mark illustrated formed the basis of a job description for an IP coordinator for UK plc: an IP Tsar (or other such title).