Thoughts on Hargreaves (part 2): a process not a product

Still mulling over what I think about the central proposals in the Hargreaves Review.  A general thought is that many of the proposals focus on process, and in this respect may be different to what the Government was expecting to see.

Last November, David Cameron announced the Review in a speech in which he said:

“The second new announcement I can make today is to do with intellectual property.  The founders of Google have said they could never have started their company in Britain. The service they provide depends on taking a snapshot of all the content on the internet at any one time and they feel our copyright system is not as friendly to this sort of innovation as it is in the United States. Over there, they have what are called ‘fair-use’ provisions, which some people believe gives companies more breathing space to create new products and services. So I can announce today that we are reviewing our IP laws, to see if we can make them fit for the internet age.”

This seems to be a call for proposals on new laws.  That is not surprising, as Governments tend to focus on introducing new laws; it is their central remit to drive legislation through Parliament.  It is what they know best.  When Governments focus on other areas – procuring IT for the NHS for example – they can get into a mess.

To be fair, the terms of reference for Hargreaves do not confine the Review to proposing new laws.  The Review was asked to make recommendations on:

  • How the IP system nationally and internationally can best work to promote innovation and growth in the 21st century with a view to setting the agenda for the long term;
  • What short and medium term measures can be taken now within the international framework to give the UK a competitive advantage.

Hargreaves rejected the idea of introducing a US-style fair use exception into UK copyright law (ie a proposal to introduce a new law) and instead recommended setting up a Digital Copyright Exchange (DCE), which would not be part of Government, but would be encouraged by Government.  This is a more complex task for a Government than passing a new law.  It is more like a multi-party negotiation than a piece of legislation.  A thought flits into my mind that Lord Mandelson would be ideally suited to being the DCE czar (see para 4.35 of the report), given his experience at BIS, at the European Commission in international trade negotiations, and at the Northern Ireland Office.

To my mind, setting up the DCE would be a process, as would some of the other proposals that Hargreaves makes, including:

  • changing the way in which new IP laws are developed and passed, by using an evidence-based approach
  • giving the IPO special powers to interpret copyright legislation
  • focussing more attention on the negotiation of new IP laws at an international level
  • requiring the IPO to draw up plans for introducing into the market “lower cost providers of integrated IP legal and commercial advice”

All of this requires a rather different approach than we have seen from Governments in recent years.  It requires a considerable amount of energy to be put into “back room” work.  Doing this work is unlikely to lead to invitations to appear on the 8.10 am interview slot on the Today programme.

It will be very interesting to see how the Government responds to the report.

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