Latest news and Articles

JUNE 2011

In late 2010, the Prime Minister tasked Professor Ian Hargreaves (chair of Digital Economy at the Cardiff School of Journalism, Media and Cultural Studies and the Cardiff Business School) with heading an independent panel to review of the UK’s long-standing intellectual property laws.  The purpose of the review was to establish whether the law as it currently stands impedes innovation, and consequently economic growth that is crucial for getting the country out of recession.  After a public consultation and meetings with a wide variety of stakeholders, Professor Hargreaves concluded that, yes, the current law is a barrier to innovation and growth.  His report “Digital Opportunity: A Review of Intellectual Property and Growth” (“the Report”) was published on 18 May 2011, and sets out proposals for a new framework of intellectual property laws which are more appropriate to the digital age.

The key recommendations contained in the Report are:

• The introduction of a “Digital Copyright Exchange” to make it easier to buy and sell copyright licences in automated transactions.  It is envisaged that such a scheme would lead to fewer disputes involving costly litigation.
• Legislation to permit licensing of so-called “orphan works” (works where the owner cannot be ascertained or traced) and a clearance procedure for individual use.  An orphan work would be defined as one that cannot be found by a search of the database of the proposed Digital Copyright Exchange. This would mean, for example, that old TV programmes could be exploited commercially in the event that not all of the rights holders could be contacted. 
• Updating what can lawfully be copied to include:
• • “format shifting” for privates purposes (for example, the copying of a compact disc recording onto a computer, and further converting it into an mp3 file); and
  • copying that does not conflict with the core aims of copyright (for example, digital copying of journals and studies to facilitate analysis for medical research, parody and library archiving).
• Ensuring that Government policy relating to intellectual property is based on economic evidence, paying particular attention to the impact on non-rights holders and consumers.
• The support of EU moves to facilitate cross-border licensing.
• Giving the Intellectual Property Office (“the IPO”) additional powers to ensure that the intellectual property system promotes growth, and to issue statutory opinions in order to help clarify copyright law.

Notably, Professor Hargreaves notably rejected the introduction of a USA-style “fair use” defence to copyright infringement.  The current fair dealing defence permits copying in very limited circumstances (for example, news reporting, research or private study, and incidental inclusion) and it was feared by the music industry in particular that this would be expanded significantly.  It appears that Hargreaves has concluded that a transparent licensing system would best promote economic growth rather than a loose defence that could lead to a greater number of disputes and consequential litigation.

Prof Hargreaves has urged the IPO to publish a report by the end of 2013 to assess the impact of the introduction of any new measures accepted by the Government.

In essence, the Report appears to be good news for rights holders, creative industries, innovators and consumers by clarifying and adapting the law for the digital age. However, it remains to be seen whether the Government will, in fact, implement all or any of Professor Hargreaves’ recommendations.

Paul Herbert
Partner

If you would like any more information about the issues raised in this article, please contact Paul Herbert (pherbert@gdlaw.co.uk), or any other member of our Intellectual Property Team on 0207 404 0606.

This guide is for general infomration and interest only and should not be relied upon as providing specific legal advice.