Hargreaves Report – Copyright Obstructing Innovation Economy

The Hargreaves report was published on Wednesday. The report responds to the government’s instruction last autumn to look at whether current copyright laws are hindering innovation in this country. The short answer is, as Hargreaves succinctly puts it, ‘yes’; reform is needed (p1). The reaction to this report has been varied (for a list of opinions ranging from Publishers to Music Executives see Guardian article).

Hargreaves emphasised the drive for reform should be based on evidence and not lobbying.

His reflection on the Digital Economy Act is that strong online enforcement should be carefully monitored. He highlighted a tough approach on enforcement of copyright should be balanced with education, open and competitive markets in licensing digital content and modernising the law (p10).

In his series of 10 recommendations to the government he encourages the UK to align itself with the EU framework to start to make use of existing exceptions, such as format shifting, non-commercial research, parodies and library archiving. Some welcome this move as being ‘worth considering’; the Wellcome Trust endorses particularly the non-commercial research exception.

Turning his attention to licensing, his ambition is to create the “world’s first Digital Copyright Exchange” (p4). This will allow rights owners to sell licences in their work and to make market transactions faster. The National Union of Journalists already consider this proposal to be problematic.

Hargreaves also seems keen to see the UK support moves by EU commission for cross border licensing and wants to release the “treasure trove” orphan works into the market (this was met with a lukewarm reception by professional photographers).

The recurring theme in his discussions on copyright reform is that more flexibility is needed.  This is neatly summed up with him asserting: “Copying should be lawful where it is for private purposes, or does not damage the underlying aims of copyright” (p8), which is refers  to as “the provision of incentives to creators” (p55).

Of particular interest are his proposals to essentially upgrade the IPO. He wants to develop their role to be able to produce formal opinions to help clarify the law where needed. He envisages the IPO giving evidence based recommendations to competition authorities and statutory opinions for the consideration of judges.

Further, to target the needs of SMEs for low cost quality advice, he suggests the IPO provide advice to individuals and/or accredit ‘lower cost providers of integrated IP legal and commercial advice’ (p104). He suggests models should be followed “elsewhere in the legal world, where paralegal services are offered by individuals less qualified than full scale patent attorneys” (p93).

The report does not provide further detail about how this would work in practice and the criteria the IPO would employ when deciding whether to accredit an IP advice provider. Is this a question of the IPO for example providing “parallel structures [..] for substitution of patent attorneys”? It is nevertheless questionable in view of budget cuts how the role of the IPO could possibly be increased.

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