By Sarah Lux

Last month, Professor Ian Hargreaves of Cardiff University released the much-anticipated Hargreaves Review, officially entitled Digital Opportunity, A Review of Intellectual Property and Growth. This independent report on the state of the UK’s intellectual property regime and its impact on economic development was commissioned in November 2010 by Prime Minister David Cameron. It was a response to the perceived risk that the UK intellectual property framework may not be succeeding in promoting innovation and growth in the national economy. Professor Hargreaves was tasked with answering what he calls the “exam question” set by the Prime Minister: “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth?” The short answer, Hargreaves says, is resoundingly yes.

Copyright to adapt to the digital environment

UK copyright law does not fare especially well in the report card given by Professor Hargreaves. The Review finds that the copyright framework in the UK is failing to keep up with the emergence of digital communications technologies that involve routine copying of text, images and data. In particular, Hargreaves is concerned by the possibility that copyright law hurts the growing online services economy. He warns that legal rules designed to deal with the needs and rights of artists and authors should not be allowed to unduly restrict emerging business sectors completely removed from the creative industries.

Hargreaves’ predominant suggestion for bringing UK copyright law into the 21st century is the creation of the world’s first Digital Copyright Exchange (DCE), a central platform for copyright licensing. Participation in this national clearinghouse should, according to Hargreaves, be “genuinely voluntary”, but motivated by “a range of incentives and disincentives” provided by the government. The Review does not suggest that the UK government should itself create the DCE, due to Hargreaves’ view that this would cause “a nightmare of IT procurement followed by the birth of a white elephant.” Rather, Hargreaves’ recommendation is that government put its weight behind assisting parties interested in creating the exchange, and strongly encouraging rightsholder participation. The Review suggests that a central platform for automatic licensing is inevitable even if the issue is left entirely to the market to resolve, and recommends that the UK government take the opportunity to get involved in a leadership capacity rather than waiting for a strong market player or group of players to “impose their own rules.”

Orphan works

The Review describes the problem of orphan works as “the starkest failure of the copyright framework.” Under Hargreaves’ recommended model for dealing with the issue, works would be automatically licensed for use if no author was found after a ”diligent search” of the DCE (prompting some scepticism as to the “genuinely voluntary” nature of participation). Any fees paid would be held by the relevant collecting society until the owner was identified or a reasonable period of time passed, at which point the money would be used “for social or cultural purposes, or perhaps as a contribution to the running costs of the Digital Copyright Exchange.”

Exceptions to copyright infringement

In his announcement of the Review in 2010, Prime Minister Cameron stated that the founders of Google felt they could never have started their company in Britain because the copyright laws are “not as friendly” to innovation. In particular, Google praised the “breathing space” provided by the fair use provisions in the US and suggested that this facilitated their entrepreneurial activity. The Review notes that most submissions from UK business were “implacably hostile” to the idea of adopting a fair use exception in the UK on the basis that this would cause disruptive legal uncertainty, cause increases in costly litigation and create confusion for buyers and sellers of copyright goods. The Review rejects the idea of a wholesale adoption of US-style fair use doctrines, arguing this would not be legally viable. However, Hargreaves takes the view that the UK can enjoy many of the benefits of the American exception by adopting other exceptions already permitted under EU law (such as those for format-shifting, parody, non-commercial research and library archiving).  In addition, the Review recommends that the UK government should lobby at EU level for a new exception for “non-consumptive” use, being use enabled by technology that does not directly trade on the creative and expressive purpose of the work in question (for example certain uses in data mining and search engine indexing).

Importance of evidence

A recurring motif throughout the report is the need for IP policy to be grounded in economic evidence of the impact of regulatory mechanisms on competition and innovation. Hargreaves notes that to date, empirical data on the impact of IP (particularly with regard to the relationship between copyright and creative innovation) has come predominantly from private parties and lobbyists, and has not been subjected to independent analysis. The Review emphasises at several points the importance of grounding law and policy in fact rather than spin.  Hargreaves does, however, note the practical difficulties associated with collecting such empirical data. This is especially the case in the context of unregistered copyright and designs and in areas such as biosciences and computing, which involve new markets and technologies with characteristics that can be hard to measure.

Clarification of copyright law

Another theme in the Review is the need to clarify copyright law for those affected by it, particularly small companies.  Recommended measures include provision of greater access to low cost legal and commercial IP advice and the empowerment of the UK Intellectual Property Office to publish formal opinions clarifying copyright law.

Enforcement

The Review notes the importance of enforcement but warns against reliance on ever-tougher enforcement mechanisms to solve the problem of copyright infringement. Rather, Hargreaves recommends a multi-faceted approach to infringement, which involves the modernisation of copyright law, better education about copyright issues and the creation of open and competitive markets in licensed digital content.

Patents, designs and trade marks

Although the Review focuses heavily on copyright law, Hargreaves strongly recommends, as a matter of ”highest immediate priority,” that the UK should increase its focus on its international IP interests by pressing for a unified EU patent court and EU patent system. The Review identifies patent office backlogs and the emergence of patent thickets as potential barriers to innovation, particularly for small enterprises. To clear and prevent backlogs, the review recommends increased international collaboration between patent offices. To deal with the problem of thickets, Hargreaves recommends the UK work with its international partners to create disincentives for the maintenance of lower value patents.

Designs were not included in the Terms of Reference for the Review, a fact about which Hargreaves expresses surprise. The Review states that designs are an important branch of the creative economy that have been neglected in the UK, recommending an evidence-based assessment of the relationship between designs and innovation. No specific recommendations are made in respect of trade marks, which are largely absent from the Review.

Relevance to Australia

The Review is, in essence, an exposition of principle rather than a detailed roadmap for reform. Professor Hargreaves acknowledges from the outset that he has “focused upon the main issues, at the risk of ignoring important points of detail.” Major recommendations, such as the creation of the DCE, will require substantial legal, governmental and commercial analysis and consideration before they have a real shot at faring better than those Gowers recommendations that have remained in the “too hard” basket since 2006.

However, the Review provides a useful high-level analysis of IP law, policy and industry attitudes in the UK, particularly in the copyright context.  It emphasises decisions that need to be made by governments as to how intellectual property frameworks might be utilised to promote economic development in an increasingly networked world. The increasing necessity for international cooperation, while not a new concept, is nicely underlined in the Review and is as relevant in Australia as it is in the UK. And Hargreaves’ emphasis on the importance of economic evidence comes at a time when Australian consumers, like their overseas counterparts, are feeling restless under the restrictions of copyright law and are demanding better evidence of the economic impacts of music and film piracy, among other types of infringement.

This report on the UK intellectual property landscape does not directly touch on Australian law or policy. However, at the level of principle, there can be no doubt that Hargreaves’ findings will be considered closely by those charged with the review of Australian copyright.

Sarah Lux is a lawyer at Allens Arthur Robinson and a sessional lecturer at the University of New South Wales.

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