The Hargreaves Report, Digital Opportunity, was published last Tuesday. Ian Hargreaves, Professor of Digital Economy at Cardiff University, was asked by David Cameron to examine whether the current IP framework is adequate to support innovation and growth in the UK economy. He concludes that it is not, that it is in fact today an obstruction to growth. He makes 10 proposals to address the deficits and to open up a more facilitating space for IP-related enterprise.
It is a happy coincidence that this report arrives so soon after the appointment of the Irish Copyright Review Group. A great deal of work has gone into the Hargreaves process. The available material will be of immense benefit in helping to inform the Irish review, especially as the time limited for submissions is so short. However the report does not provide a set of ready-made solutions to the Irish questions. The Irish regime has diverged quite a bit from that of the UK in the last two decades. So although many of the issues are the same, our starting point is different. We will need to accurately identify the shortcomings in the Irish regime and arrive at solutions that will work in an Irish context.
Hargreaves’ 10 recommendations are summarised below. The most striking are the proposals to establish a Digital Copyright Exchange as an online licensing platform and to introduce extended collective licensing for orphan works. Some changes to exceptions are proposed, including the introduction of new exceptions for format-shifting, parody and library archiving. These were proposed by the Gowers Review in 2006, but not implemented. What is new however is the proposal to promote at EU level an exception to support text and data analytics, and to provide a mechanism to allow uses enabled by technology in ways that do not directly trade on the underlying purpose of the work. This addresses the concerns of the “fair use” advocates.
It is remarkable that although Hargreaves was asked to review the whole IP structure, it is copyright that is the major preoccupation of the report. It is also remarkable that he focuses on design law as having been overlooked in the contribution it can make as a support to innovation. There are lessons for us in both of these aspects of the report.
There is just one problem with Hargreaves from an Irish perspective, and that is that the UK Government may act upon it. For some years now the UK has been seeking to establish a reputation as the best place in Europe to locate digital business. Hargreaves’ Digital Copyright Exchange proposal will certainly make a splash in Europe, where the EU Commission is still grappling with how to frame a Proposal for a Directive on Collecting Societies so as to open a path for pan-European licensing. So, while Hargreaves is of considerable reference value to us in terms of our review, it does add to the pressure to appropriately upgrade the Irish regime, to demonstrate a similar commitment to provide a facilitating base here for digital enterprise.
The 10 Recommendations
1. Government should ensure that IP policy is evidence-based.
2. It should attach a high priority to promoting a unified EU patent system.
3. The UK should establish a cross-sectoral Digital Copyright Exchange and support the European Commission in establishing a framework for cross-border licensing.
4. Legislation should provide a system of extended collective licensing for orphan works.
5. New copyright exceptions should be created for format-shifting, parody, non-commercial research and library archiving. The Government should support new exceptions to permit text and data analytics, and to allow technology-enabled uses that do not trade on the underlying purpose of the work.
6. Government should investigate how “patent thickets” can be eased and work to ensure that patents are not extended into sectors such as non-technical computer programmes and business methods, without clear evidence of the benefits.
7. The Intellectual Property Office should conduct an evidence-based assessment of the relationship between design rights and innovation.
8. An integrated approach to enforcement of rights should be adopted, incorporating education and support for the growth of legitimate markets as well as implementation and monitoring of the effect of the Digital Economy Act. A small claims track should be introduced for claims of low monetary value.
9. The Intellectual Property Office should provide enhanced IP legal and commercial advice to small business.
10. The Intellectual Property Office should be mandated by law to focus on the central task of ensuring that the UK IP system promotes innovation and growth through efficient contestable markets.
