Thoughts on Hargreaves (part 1): more than a nudge, but less than a full arm lock with menaces*

Prof Hargreaves demonstrates an evidence-based approach

[Postscript: the following posting was hastily written on the day the Hargreaves Report was published. With hindsight, it would have been better to explain in more detail what the key findings of the report were, before commenting on them.  A summary of the findings appears on the IPKat website here.]

This posting provides our initial reactions to the report published today, Digital Opportunity: A Review of Intellectual Property and Growth, otherwise known as the Hargreaves Review.  We will provide further comments in later postings.

1. This report is much better than Gowers.  Hargreaves notes that only 25 out of Gowers’ 54 recommendations have been implemented.  But that is partly because many of those recommendations were ill-thought-out and inappropriate. Gowers came across as a work of journalism.  Hargreaves comes across as more thoughtful, but in some areas we think he hasn’t got to the bottom of the issue and therefore his recommendations don’t convince.  For example, who at the IPO has the skills to opine on matters of copyright law (see paragraph 10.22 on page 96)?  Part of Hargreaves’ thinking is that the IPO already does something like this for patent infringement, so why not for copyright?  But in the case of patents, the IPO has a large team of patent examiners who have years of experience of applying patent law.  There is no such team, as far as we know, in the copyright area, so the IPO does not have any established credibility in this field.

2. Hargreaves would like IP policy to be based on evidence (the word evidence appears 148 times in the report).  In other words, it should not be based on lobbying or political expediency.  Fine, but how realistic is this in our present democracy?

3. Some of the simpler recommendations appear to be sound, such as recommending that format-shifting be allowed.  We agree that maximum use should be made of the copyright exceptions permitted under EU law.

4. On more difficult subjects, like how to make IP advice more affordable for SMEs, we are not convinced that he has found a solution.  In our view, the IPO should not be offering commercial services, and it is unclear what “plans” it could draw up to introduce integrated (and presumably cheap) service providers into the market.

5. It appears to be a report by Professor Hargreaves alone, with his colleagues (eg IP expert Roger Burt of IBM, and a member of the CIPA Council) relegated to the role of experts on an advisory panel, and reserving the right to disagree with the report’s conclusions (see page 2).  Press releases last year indicated that he would lead a review team, and rightly or wrongly we had the impression that the report would be a collective product of the team.

Our first take on the 10 recommendations that appear on pages 98-100 is as follows:

(1) Evidenced-based policy-making – fine, but we reserve judgment on whether this or any Government will prioritise evidence over political judgment.

(2) International lobbying – good, but it will require more effort than seems to be exerted at present by Govt ministers.  Too technical and boring for ministers?

(3) Copyright licensing – including setting up a Digital Copyright Exchange – good, but will Govt put sufficient energy into making it happen?  Will vested interests allow it to work?  Ambitious but could be good.

(4) Orphan works – devil is in the detail.  Is this Google Books by the back door?

(5) Limits to copyright – good.

(6) Patent thickets and other obstructions – no objection in principle to more creative pricing of patent fee structures.

(7) The design industry – can be summarised as the IPO should look into it – fine.

(8) Enforcement of IP rights – Small claims court could be good, but let’s see the detail.

(9) Small firm access to IP advice – seems half-baked.

(10) IP system responsive to change – increased mandate for IPO – in theory this could work but it would require some radical changes to the way the IPO operates and its skill sets.  We are not yet convinced.

More to follow.

* Hargreaves Report para 4.30, final sentence.

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