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Intellectual property system needs to be 'fit for the internet age'

Intellectual property system needs to be 'fit for the internet age'

Published: 17.11.10 at 10:18

On 11 November 2010, the UK government announced details of a review of the country's intellectual property (IP) system. Law firm DLA Piper set out the implications.

The announcement of a planned review of the UK's IP system was foreshadowed by the Prime Minister's comments in the previous week that the UK IP system was due for review  to make it 'fit for the internet age'. His implication that they are presently 'unfit' is a sentiment which has been echoed by some, but denied by others.

The government says that it has recognised that a key part of the country's economic growth now lies behind the expansion of its technology and knowledge-based industries.  The intention behind this review is to make the UK a more attractive centre for new business in those sectors in the future. 

The review in brief
The review will be led by journalism professor Ian Hargreaves, ex-editor of The Independent newspaper and the New Statesman, and current chair of Digital Economy at the Cardiff School of Journalism. His review is due to be delivered to the government in April 2011. The UK IP Office (IPO), which is co-ordinating the review, have not yet announced details of any consultation, but details of the review's terms of reference can be found here.

The review will primarily focus upon:

  • The barriers to new internet-based business models, including the costs of obtaining permissions from existing rights-holders;
  • Investigating the benefits of 'fair use' exceptions to copyright (as used in the US) and how these may be achieved in the UK;
  • The cost and complexity of enforcing IP rights within the UK and internationally;
  • The interaction between IP and competition frameworks; and
  • The cost and complexity to SMEs of accessing services to help them protect and exploit their IP.

The Gowers Review
This is just the latest in a series of government reviews of the UK IP system in recent years. In December 2006 the Labour government commissioned a similar review of the system, led by Andrew Gowers. The Gowers Review, criticised by some as something of a 'damp squib', concluded that the system was largely working satisfactorily. It did however set out a range of recommendations for action, although they were only implemented in part before the change in government occurred earlier this year.

Calls for change
The most controversial area of the proposed review will be the issue of whether to increase the exceptions to copyright protection. Some detractors of the UK system argue that it is balanced too heavily in favour of right holder's interests, and is thus unsuited to the modern digital era. Indeed, this point was made by Mr Cameron last week, based on a discussion he had had with the founders of Google. Mr Cameron spoke of Google saying that a business like Google or Facebook could not have been founded in the UK under its (supposedly) restrictive copyright regime. Mr Cameron spoke more favourably of the US copyright regimes, with their 'fair use' defences.

The Gowers Review identified a number of areas where exceptions to the copyright restrictions could and should be extended, such as for educational establishments, research and private study, libraries and archives, parody, as well as private copying/format shifting. These recommendations were taken up by the UK IPO in its second consultation on the Gowers Review recommendations (Taking Forward the Gowers Review – Second Stage Consultation on Copyright), in which revised proposals and draft implementing legislation were set out for a further round of consultation.  However the proposals to introduce format-shifting and parody exceptions were dropped. While some of the Gowers Review recommendations for copyright were addressed in the Digital Economy Act (such as provisions for orphan works and an increase in the maximum statutory fine for copyright infringement), the right to a judicial review of the Act as recently granted by Mr Justice Wyn Williams means its fate remains undecided until February next year.

Implications
There are significant hurdles to any changes which would significantly reduce the scope of copyright defences in the UK. First, the scope of UK law defences to copyright infringement are largely dictated by EU legislation. Secondly, there will be strong opposition to such reduction by content-owners, who are likely to see it as further eroding the value of their copyright at a time when such right-owners are already suffering from the effects of online piracy. In any event, it should be noted that the UK does already provide a number of specific fair dealing defences, which go some way towards providing similar protection to the fair use provisions in the US.

It is a case of 'watch this space' for details of any consultation, as we await information on how the review is likely to be carried out in practice. 

Story by DLA Piper. Photo credit: Jenny Downing

 

Please note that this article discusses the legal position in the UK at the time of publication. It provides general information only but is not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.

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