This post was first published on 29th May, 2011.
Intellectual Property Rights, referred to as IPR, is one of the most upcoming branches of law. It is very dynamic, and laws are being made and changed according to what suits best the current social, economical, and political scenario. The laws are considered as an inevitable part of the modern world, as it ensures an exclusive right to people who discover or invent new appliances and processes.
This grant of exclusive right has lead to the realization of the economic importance of IPR, especially to those companies or individuals who are innovative and bring about new products or processes, which are better than the previous one, in terms of quality or efficiency. Such people would be in a position to grant ‘licences’ to people who want use their discoveries, and generally this is done in exchange for money. Another advantage of granting such rights is that in case of illegal or unlicensed usage of discoveries or inventions, such users are liable to ‘sued’ in a court of law, and this wrong usage is called infringement, which if proven, invites punishment in terms or jail or fine or both.
Knowing the importance of this, the United Kingdom requested Professor Ian Hargreaves, to study and publish a report on IPR, its benefits for the economy and also, the changes or additions that ought to be made to the current laws, along with how IPR would help in innovation and growth. His studies lead to the publication of Digital Opportunity, a six-month independent review of IP and Growth.
His report has been framed with the purpose giving UK an edge over its competitors, and also, taken together, they have the potential to add up to 0.6 per cent to annual GDP and to cut the costs of doing business with IP-related business by £750 million within a decade.
The highlights of the report are:
· The UK should have a “Digital Copyright Exchange ”: a digital market place where licences in copyright content can be readily bought and sold. By a digital market place, the report means an online interface for all IPR related issues.
· It proposes to legislate on “orphan works”, which means, IPR whose owners are unavailable or are unable to reach. This is a problem without the owner being traced, licences cannot be issued, and it might lead to unlicensed usage, and such works might be exploited commercially. To avoid this, if the rights are vested with someone else also, they can have the money that is offered to acquire the license.
· Another important point which it includes is: an updating of what is lawful to copy. It gives us an example of music being transferred from a computer to a music player. It also says that copying which does not conflict with the core aims of copyright – for example, digital copying of medical and other journals for computerised analysis in research, need not be treated illegal.
· 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.
· Changes to the Intellectual Property Office’s (IPO) powers to enable it to help the IP framework adapt to future economic and technological change.
Quoting Professor Hargreaves, “In recent years, the UK has failed to make the changes needed to modernise copyright law, for which we will pay an increasing economic price as we make our way into the third decade of the commercial internet. My recommendations set out how the IP framework can promote innovation and economic growth in the UK economy.”
The key feature of this report is that it cuts across many ministries, not restricting its scope to a certain sector of the governmental policies. The recommendations on copyright will be of particular interest to the Department for Culture, Media and Sport and the Department of Education.
Certain other recommendations of the report include:
The review states that the government should ensure that development of the IP System is driven as far as possible by objective evidence. It talks about striking an important balance between social goals and rights of IPR owners against impacts on consumers and other interests. This clause is of importance because it will play a role on determining the extent of rights the owner of an IP has.
· International priorities:
The review brings out the importance of maintaining and sustaining growth and development of the IPR sector with emerging economies such as China and India. The review states that UK should attach highest immediate priority to achieve a unified “EU patent court” and “EU patent system”, which in turn promises significant economic benefits to UK business. It also states that UK should work to make the Patent Cooperation Treaty a more effective vehicle for international processing of patent applications.
· Copyright licensing:
The report states that to boost the accessibility of firms in UK to other “Digital Markets”, the UK should establish a cross sectoral Digital Copyright Exchange. The report recommends the appointing of a senior officer who would look into the designing and implementation of this project by the end of 2012. The report, to ensure participation of right holders, says that incentives and disincentives should be provided. The report says that UK should support moves by the European Commission to establish a framework for cross border copyright licensing, with clear benefits to the UK as a major exporter of copyright works. Such a goal can be achieved only by adoption of laws of codes of practice, approved by the IPO and the UK competition authorities, to ensure that they operate in a way that is consistent with the further development of efficient, open markets.
· Orphan works:
The report, as mentioned already, mentions that the Government should legislate to enable licensing of orphan works which would establish extended collective and mass licensing of orphan works, and a clearance procedure for use of individual works. The report says that all those work, which cannot be found on the “Digital Copyright Exchange”, should be treated as orphan.
· Limits to copyright:
The report, giving importance to the rights of owners, states that the government should not over-regulate, and in the process override the main aim of copyright laws, i.e. to provide incentives to creators. It states that the government should deliver copyright exceptions at national level to realise all the opportunities within the EU framework, including format shifting, parody, non-commercial research, and library archiving. The report states that the UK should give a lead at EU level to develop a further copyright exception designed to build into the EU framework adaptability to new technologies and also, the Government should also legislate to ensure that these and other copyright exceptions are protected from override by contract.
· Patent thickets and other obstructions to innovation:
The report says that to limit the laws which bar innovation, the government should
- Take a leading role in promoting international efforts to cut backlogs and manage the boom in patent applications by further extending “work sharing” with patent offices in other countries.
- Work to ensure patents are not extended into sectors, such as non-technical computer programs and business methods, which they do not currently cover, without clear evidence of benefit.
- Investigate ways of limiting adverse consequences of patent thickets, including by working with international partners to establish a patent fee Review of Intellectual Property and Growth structure set by reference to innovation and growth goals rather than solely by reference to patent office running costs.
- The structure of patent renewal fees might be adjusted to encourage patentees to assess more carefully the value of maintaining lower value patents, so reducing the density of “patent thickets”.
· The design industry:
The report states that the role of IP laws in creating an environment of creativity has not been achieved. The report recommends that over the next 12 months, the IPO should conduct an evidence based assessment of the relationship between design rights and innovation, with a view to establishing a firmer basis for evaluating policy at the UK and European level. The report talking the what the assessment should include states that it should include exploration with design interests of whether access to the proposed Digital Copyright Exchange would help creators protect and market their designs and help users better achieve legally compliant access to designs.
· Enforcement of IP rights:
The report mentions that an integrated and synergetic approach based on enforcement, education and, crucially, measures to strengthen and grow legitimate markets in copyright and other IP protected fields should be followed. The report states that to ensure effective enforcement, the new system must be keenly observed and compared with other systems of the world in order to ensure that enforcement mechanisms adjust and evolve with the market situations. The report also mentions that a small claims track for low monetary value IP claims in the Patents County Court should be initiated.
· Small firm access to IP advice:
The report says that the IPO should draw up plans to improve accessibility of the IP system to smaller companies who will benefit from it, which involves access to lower cost providers of integrated IP legal and commercial advice.
· An IP system responsive to change:
The report states that the IPO should be vested with powers to ensure UK’s IP system promotes innovation and growth through efficient, contestable markets. It also mentions that the IPO should have powers to give a “statutory opinion” in cases of discrepancies. The report says that as an element of improved transparency and adaptability, the government should ensure that by the end of 2013, the IPO publishes an assessment of the impact of those measures advocated in this review which have been accepted by Government.
In conclusion, it can be said that this review is a product of extensive study on the current IPR situation in the UK. The report, suggesting various measures to develop the IPR laws ensures that creators of IP are ensured with their rights, and it also makes sure that they get their due credit. It also solves a very important problem of “orphan works”. The report calls for an international cooperation among countries to ensure the IPR laws work efficiently and effectively.
Authored by Mr. Bhargav Rao.