The UK government has commissioned a review of its policies on copyright, patents and other intellectual property rights (IPR). The review has been done by professor Ian Hargreaves, who holds the chair of Digital Economy at the Cardiff School of Journalism, Media and Cultural Studies and Cardiff Business School.
The resulting Hargreaves Review (pdf, 130 pages) is very interesting reading.
Let me start by making one thing absolutely clear: The Hargreaves Review is not a ”Pirate Manifesto”. It is written from a general pro-IPR perspective, and there are many cases where I as a pirate disagree with the proposals made, or think that they do not go far enough. In particular, the Review offers no solution to the problem of illegal file sharing, other than the usual enforcement/education policy that has failed so spectacularly for at least a decade.
But if we leave that aside, there are many positive concrete recommendations in the Review that deserve to be taken seriously.
Evidence based policy making is the first thing that the Review calls for. Already in the Foreword, it says:
We urge Government to ensure that in future, policy on Intellectual Property issues is constructed on the basis of evidence, rather than weight of lobbying…
I could not agree more, and this is an area where there is much room for improvement. In the Executive Summary, the Hargreaves Review writes:
The frequency of major reviews of IP (four in the last six years) indicates the shortcomings of the UK system. In the 1970s, the Banks Review deplored the lack of evidence to support policy judgments, as did the Gowers Review five years ago. Of the 54 recommendations advanced by Gowers, only 25 have been implemented. On copyright issues, lobbying on behalf of rights owners has been more persuasive to Ministers than economic impact assessments.
On copyright, the Review first of all advocates a ”digital copyright exchange [that] will facilitate copyright licensing and realise the growth potential of creative industries”.
Although I have noting against this idea if somebody feels like trying to establish such an exchange under today’s copyright legislation, I seriously doubt that this is going to be enough to solve the problem of easy pan-European licensing, and to lay a foundation for Europe as a Digital Single Market.
But there are other very constructive suggestions. The Review writes in its Recommendations:
4. Orphan works. The Government should legislate to enable licensing of orphan works. This should establish extended collective licensing for mass licensing of orphan works, and a clearance procedure for use of individual works. In both cases, a work should only be treated as an orphan if it cannot be found by search of the databases involved in the proposed Digital Copyright Exchange.
5. Limits to copyright. Government should firmly resist over regulation of activities which do not prejudice the central objective of copyright, namely the provision of incentives to creators. 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. The UK should give a lead at EU level to develop a further copyright exception designed to build into the EU framework adaptability to new technologies. This would be designed to allow uses enabled by technology of works in ways which do not directly trade on the underlying creative and expressive purpose of the work. The Government should also legislate to ensure that these and other copyright exceptions are protected from override by contract.
On patents, the Review also has constructive suggestions:
6. Patent thickets and other obstructions to innovation. In order to limit the effects of these barriers to innovation, the Government should:
- 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;
- work to ensure 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;
- 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.
All in all, I think the Hargreaves Review is well worth reading for anyone who takes an interest in IPR policy. Although the Review is written from a UK perspective, most of the reasoning is equally relevant at the EU level and in other member states.
But the most interesting question is of course to what extent the UK government will follow the Hargreaves recommendations. When the previous Labour government got the Gowers Review in 2005, they only acted on half of the recommendations, and left most of the problems of adapting the IPR system to this century unsolved.
Will the current Tory/Liberal UK government do better? Only time will tell.