UK Parliament Panel Urges Government To Speed IP Reforms

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The United Kingdom government has done a “considerable amount” of high-grade policy development work in the year since publication of a key report on the health of its intellectual property regime but must move faster, the Commons Business, Innovation and Skills Committee said on 27 June. It strongly criticised Britain’s approach to the controversial proposal for a unified EU patents.

The May 2011 review of Britain’s “digital opportunity” [pdf] was headed by Ian Hargreaves, digital economy chair at the Cardiff, Wales School of Journalism, Media and Cultural Studies and Cardiff Business School. It recommended sweeping changes to the country’s IP framework to help boost growth. The Commons panel report considered what happens next.

Among other things, the Hargreaves review recommended the creation of a “digital copyright exchange” to attach automated digital rights and conditions information to copyrighted content; a one-stop shop for cross-border licensing; and new laws permitting format-shifting. It also strongly pressed the government to base policy on evidence rather than lobbying (IPW, European Policy, 31 August 2011).

“Lobbynomics” Discouraged

Hargreaves identified three key problems inhibiting greater use of evidence in crafting IP policy, the parliamentary report said. There are areas of IP rights for which data is simply difficult to come by, such as unregistered copyrights and design rights, it said.

The most contentious policy questions usually pop up in areas such as computer programmes, digital communication and biosciences, which are new and inherently uncertain because they involve new technologies or markets, the report said.

In addition, much of the data needed to develop empirical evidence on copyright and designs is privately held and enters the public domain “chiefly in the form of ‘evidence’ supporting the arguments of lobbyists (‘lobbynomics’) rather than as independently verified research conclusions,” it said.

Hargreaves “was right that IP policy needs to be more rigorously supported by solid econometrics,” said committee Chairman Adrian Bailey.

Format-Shifting Exception Likely

In its consultation on copyright, the UK Intellectual Property Office proposed several legislative options for a format-shifting exception to copyright, the Commons report said: Unrestricted private copying of loaned works; private copying within the family and social circle; copying for individual personal use; and copying only where there is minimal harm.

If that review shows real evidence of actual lost sales from private copying, then policy should be determined accordingly, the panel said. But there must be “pragmatism about both the pricing of content and the reality of expectations of personal use,” it said. “We suspect that a copyright exception based on personal use or use within the private sphere might prove most practicable and justifiable,” it said.

The committee said it “did not hear any arguments in favour of retaining the UK’s copyright statute in its current form” because the measure was enacted before computers were commonplace and needs rewriting. It urged the government to bring update the laws “at the earliest opportunity.”

Lawmakers also urged the government to move forward on Hargreaves’ proposal for a digital copyright exchange, provided it’s kept simple and backed by proper cost/benefit analysis.

The report endorsed the idea of requiring intermediaries such as internet service providers to shoulder more responsibility for ensuring legal content. It also urged the government to bring into force provisions in the Digital Economy Act 2010 that will allow the use of technical measures such as internet blocking, throttling and access cut-off against suspected pirates.

Patent Concerns

While some type of supranational European patent has been deemed desirable for decades, obstacles in the form of permissible languages of the patent, the location and jurisdiction of patent courts, who should pay for them, and the need to build consensus around pan-European patent enforcement have hampered its development, the Commons report said. There is a current proposal for a non-EU international agreement for a patent covering 25 of 27 member states, as well as for a unified patent court, it said.

But the plan is plagued by several controversial issues, including patent court funding and the risk of litigant “forum-shopping,” the report said. Moreover, it said, the UK government has failed to make a strong case for its negotiating stance in appearances before it and a separate committee.

The panel might have concluded that the apparent absence of negotiating “red lines” could be due to a desire not to give away the official position, but “combined with the overall vagueness about direction and the lack of command of detail, the impression was instead of a lack of firm direction,” the Business Committee reported. It’s clear that the current negotiating strategy for a unified patent court “is not fit for purpose” and does not adequately protect UK interests, it said.

The government now has 30 days to respond, a committee press officer said. If officials act on all of the report recommendations, the panel’s scrutiny is complete, he said. If not, the committee will have to decide its next move.

Dugie Standeford may be reached at info@ip-watch.ch.

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