Geldards Comments on Hargreaves' Report on Intellectual Property

Today, the latest independent report on intellectual property is published and recommends a host of changes to the current IP Framework in the UK.

Led by Professor Ian Hargreaves, a professor of digital economy at Cardiff school of Journalism, Media and Cultural Studies, it looks at how intellectual property laws in the UK can be used to better drive growth and innovation. When announcing the report in November of last year David Cameron was reported as saying that IP laws needed to be “fit for the internet age.” He went on to say ”I want to encourage the sort of creative innovation that exists in America.”

In line with its remit, the report makes 10 main recommendations designed to reinvigorate and monetise the creative industries sector. Somewhat controversial (if you work in the creative industries at least), is the recommendation that the Government’s IP policy decisions need to be more closely based on economic evidence and should pay more attention to the impact on non-rights holders and consumers. Other key recommendations include introducing a copyright exception for parody; which would effectively bring the UK closer into line with the US’s more flexible “fair use” provisions. The report also recommends the establishment of a new one-stop shop for clearing use of copyright content (a “Digital Copyright Exchange”) by the end of 2012 and creating a further copyright exception for format shifting, that is, the copying of copyright works from one media to another.

A number of commentators and members of the public are already critical that the report does not go far enough, and simply languishes in the margins of change. The mood of the creative industries on the other hand seems to be more that the review is slanted in favour of the growth of tech companies. It seems to me that whilst we must of course embrace new technology as a means of making information and content readily available (so says the recent twitter convert); a balance needs to be struck between this, and preserving the enshrined rights of copyright owners to decide who can use their work, and for what purpose. Why shouldn’t those who invest time, money and creativity into developing copyright works (or in fact, any other form of intellectual property) be granted certain exclusive rights and a certain timeframe in which to exploit these? Eroding copyright by introducing a number of copyright exceptions simply because new technology has made it possible (and increasingly easy) for the lay person to use, share, parody or reproduce and so forth another’s copyright work is not necessarily a good enough reason for change.

Take the “format shifting” copyright exception argument for instance. Whilst it may be easy to recommend, it will be considerably harder to implement. For example, how does the UK make wholesale legislative changes when it is constrained by EU law? And on a more practical level, how do you legislate to allow individuals to make a copy of a copyright work, whilst also ensuring that such uses were only made for that individual’s own domestic purposes? How many copies should any one person be allowed to make? And even if you did restrict use to domestic, non-commercial use, where would the line be drawn between making a second copy of a CD for use in the car and between a second copy being made for a daughter/son to take to university, where feasibly such copy could then be shared and re-copied amongst friends?

Creating a statutory right to format shift is arguably unnecessary. The right to format shift is already effectively dealt with in the digital world by way of express licence from copyright owners (or third party providers on their behalf). Take the apple iTunes store for example, which, through its Terms of Use and DRM technology, “licenses” users to make a certain number of copies of an MP3 music file – both to allow access to a user’s music library from more than one computer, and also to allow the transfer of the MP3 file into another format. A similar “licence” could be included on CD cases, allowing purchasers certain rights to format shift. Arguably, this is the easier, more cost-effective alternative to a statutory change and one which would ensure that copyright owners remain entitled to reserve their exclusive copyright acts and to manage the use by others of such acts as they see fit.

It remains to be seen whether the Government will act on any of the recommendations contained in the report or whether, like the majority of the recommendations in Carter’s Digital Britain report and Gower’s review before it, this report will be largely ignored. However, in the current climate and with Hargreaves’ arguments taking on a decidedly economic slant, this time, the Government may well be minded for change. Only time will tell.