Posted by Christina Ilinkovski
The United Kingdom Government has released a formal written response broadly endorsing the recommendations and criticisms made by Professor Hargreaves in his review of UK intellectual property laws earlier this year (reported in our June edition of IP News).
The Government intends to release a 'White Paper' early next year setting out how it will address the issues raised by Professor Hargreaves. In the meantime, the Government's latest response provides a preliminary indication of their plans for action. Given that Australia is also in the process of reviewing its IP laws (eg. the pending Intellectual Property Laws Amendment (Raising the Bar) Bill 2011), it is timely to consider the relevance to Australia of the issues before the UK Government.
General Endorsements
The Government accepted Professor Hargreaves' overall conclusion that IP is important to growth. It also agreed that in some cases IP laws (particularly copyright laws) were obstructing growth and failing to adapt to new forms of technology and creativity.
Echoing Professor Hargreaves' concerns, the Government noted that past policy decisions on IP were, at times, based on a lack of high-quality evidence and an overabundance of lobbying. Accordingly, future policy decisions will focus on 'open and transparent' evidence and the United Kingdom Intellectual Property Office (UKIPO) will work with organisations to help them offer good-quality evidence.
Digital Copyright Exchange
The Government supports the creation of a Digital Copyright Exchange (DCE) to be used by sellers and purchasers of IP rights to '[enable] a functioning digital market in rights clearance and [act] as a source of information about rights ownership'. The Government believes it is important for the DCE to be commercially attractive to rights owners, and to this end suggests that participation in the DCE should not be compulsory; and that the rights owners can set the prices for their IP (subject to controls on unfair competition).
The Government proposes that the DCE will be self-funded through fees charged on licensing transactions made through the exchange (rather than fees for the upload or searches of rights data). The Government appears to be optimistic about the prompt implementation of the DCE, stating that a functioning licensing system should be in place by the end of 2012.
Modernising copyright licensing
Of particular interest to Australia are the UK Government's comments regarding orphan works – copyright works whose authors cannot be found by those wanting to use the works. The UK Government acknowledged orphan works as posing a significant economic problem. Similar problems also arise in Australia – for example, recently 16,000 radio plays at the Australian National Film and Sound Archive could not be released because the copyright owner could not be located.
The Government proposes to introduce a 'clearance' scheme within the next few months, under which prospective users of orphan works are required to conduct a diligent search for the owner. If no owner is identified, then the orphan work can be used subject to paying a license fee set by the Government (or its agent) based on market rates (in contrast, Professor Hargreaves recommended that the licence fee be set at a nominal rate only). If the owner of the orphan work is subsequently found, future use of the work would be subject to negotiation, but previous use would be subject only to the licence fee set by the Government.
These proposals will be monitored carefully in Australia, where there have been many calls for legislative reform in the area of orphan works.
Recognising the good work done by certain UK collecting societies, the Government plans to publish in early 2012 a set of minimum standards for voluntary codes and to consult with collecting societies to implement those codes. Further, the Government has also accelerated a proposal for extended collective licensing (ECL), with the aim of benefiting smaller creative firms and individual creators. The proposal is based on a Nordic model, whereby, once a collecting society has critical mass (eg. a majority) of people in a particular sector, the collecting society is granted the right to licence works owned by non-members unless they expressly opt-out of the ECL scheme.
The ECL scheme would also apply to orphan works included within a collection of copyright works. After a diligent search to check whether the orphan works are in fact owned and opted-out of the ECL scheme, the relevant collecting society would be entitled to issue a licence to use the orphan work. The collecting society would hold the licensing fees until either the owner is identified or a reasonable period of time lapses. In the latter case, the fees would then be used for social or cultural purposes.
Copyright Exceptions
The Government acknowledges that 'copyright currently over-regulates to the detriment of the UK', for example by restricting activities in a way that creates no direct commercial benefit and may even impede desirable activities. The proposed solution is to introduce broader exceptions to copyright infringement to permit:
(i) limited format-shifting of legally obtained copyright works for personal use;
(ii) parody of another's work without authorisation; and
(iii) wider non-commercial research also covering text and data mining (eg. to give scientific researchers greater freedom to analyse published research).
The aim of removing perceived obstacles to growth under current copyright laws appears a sensible one. However, proposals to extend copyright exceptions are not new (see the earlier Gowers Report on UK IP laws in 2005), and it remains to be seen whether these proposals are in fact implemented.
Patent and Design Law
The Government shares Professor Hargreaves' concern that, in some business areas, patents are anti-competitive and may stifle innovation. It therefore intends to resist extending patents into sectors which are currently excluded unless there is clear evidence of a benefit to innovation and growth. This higher threshold will likely be tested by those lobbying the Government to make the UK more 'patentee friendly' by broadening patentable subject matter (eg. to allow software patents) to mirror developments in other countries.
To further the objective of encouraging research and innovation, the UKIPO will publish findings by November 2012 on the scale and prevalence of patent thickets (the practice of filing a number of overlapping patents); and set out plans later this year to improve accessibility to the IP system.
In relation to designs, the Government accepted Professor Hargreaves' concerns that the UK's design rights system is not adequate for the needs of business and is a 'patchwork of provisions'. The UKIPO is tasked with researching the level of design registration and its impact on UK competitiveness. By the end of the year, the UKIPO will publish its findings on the proposed simplification of the design rights system, including whether there is need for a separate UK registered design right alongside the current pan-European registered design right system.
Further issues on the Government's agenda
The Government's response to Professor Hargreaves' report is an encouraging one and indicates a commitment by the Government to address the concerns raised in the report. There will be considerable interest in the Government's 'White Paper' due early next year and the various research and reports due over the coming year. Will the report prompt meaningful changes to UK's IP laws or will it share the fate of the similar Gowers Report of 2005?
Click here to access the UK Government's Response.
Partner: Charles Alexander
0 comments:
Post a Comment