Michael Gilburt is a JD candidate at Osgoode Hall Law School.
On May 18, 2011, a review committee led by Cardiff University Professor Ian Hargreaves released a report that deemed the UK’s intellectual property (IP) regime obsolete in the digital age. Prime Minster David Cameron commissioned the report following claims made by the founders of Google that the country’s current copyright laws would have made the creation of the American Internet giant impossible. The report concurred, stating that UK “copyright law has started to act as a regulatory barrier to the creation of certain kinds of new, innovative businesses.”
The report makes ten principle recommendations for reform, which cover patent, copyright and the policy-making process. In the patent realm, the report highlights the need for reform to prevent the formation of patent thickets – overlapping intellectual property rights that impede technological innovation. According to James Boyle, a member of the review committee’s expert advisory panel, patent thickets are most prevalent in the UK in fields involving “sequential innovation” such as information technology.
The report also advocates for sweeping reforms to the country’s copyright laws. Most notably, the report recommends that certain works be exempted from copyright regulation, such as parodies, critiques and non-commercial research (the former of which was borrowed from Canada’s proposed Copyright Modernization Act (Bill C-32)). The report also recommends an exception for “format-shifting”, which would “allow individuals to make copies for their own and immediate family’s use on different media.”
A particularly innovative recommendation involves the creation of a “Digital Copyright Exchange.” This approach seeks to streamline the country’s licensing regime through a “one-stop shop” that facilitates access to creative content by consumers while ensuring owners are compensated. This exchange would also serve to remedy the UK’s problem of “orphan works” – copyrighted work whose author cannot be identified. At present, a large body of historical work cannot be distributed through digitization, as no entity exists to give permission for reproduction or republication. A licensing collective, paired with a clearance exception for use of the work, would provide such a mechanism.
Finally, the report includes reforms directed at the policy-making process. It attributes the historical rigidity of the country’s IP regime to “lobbynomics,” whereby powerful interest groups have monopolized the “data needed to develop empirical evidence” and manipulated it to support IP policies with little economic benefit. To combat this problem, the government needs to ensure policies are based “on transparent and rigorous economic methods” that lead to “independently verified research conclusions.”
Although the Hargreaves Report calls for the relaxation of UK copyright law, it expressly rejects the idea of adopting the US doctrine of “fair use”, which allows copyright material to be used without permission under certain conditions. While Prime Minister Cameron has expressed his support for such a policy, the report concludes that the fair use doctrine would be problematic on a number of fronts. First, it notes that the doctrine emerged in the US by case precedent and would be too complicated to replicate in the UK legal system. Second, it notes that the factors used to determine fair use are highly subjective and would likely produce a high-volume of lawsuits. Lastly, the report questions whether EU law, which serves as the UK’s policy framework, would tolerate the adoption of an open-ended fair use exception.