Gowers Review fails to hit the mark

Towards the end of last year, at the Government’s request, Andrew Gowers, the former editor of the Financial Times, published his review on the current state of intellectual property rights in Britain.  Because of the value attached to intellectual property rights, whether owned by companies or individuals, intellectual property issues and the “system” for protecting them have been a major priority for the Government.

The Gowers Review hit the headlines immediately following publication. Leading musicians have been seeking an extension of the copyright term for sound recordings from the present 50 years to 95 years. Despite the Review rejecting the extension, the Government will continue to be under pressure to ignore its recommendation and increase the term. However, attempts to bring the UK into line with other countries in this respect may bring about future change.

Although the Review found Britain’s intellectual property system to be robust, it failed to address certain issues of disparity in intellectual property rights which have a major impact on world trade. Yet out of a total of 54 recommended improvements, some are very positive and are likely to result in new legislation in the short term. Possible changes to the intellectual property system are as follows:

• The re-naming of the UK Patent Office as the UK Intellectual Property Office to reflect its responsibilities for trade marks, designs and copyright as well as patents.
  

• The development of model intellectual property licences by the Patent Office, which will help owners to exploit their intellectual property, and model reports of the value attached to intellectual property rights to appear in company accounts.

• In the copyright arena, the establishment of a permitted act of “parody, pastiche and caricature”. Surprisingly, parodies containing extracts from the work being parodied amount to copyright infringements. In the interests of free expression, a blanket permission to create parodies, pastiches and caricatures would, certainly in the opinion of the BBC, allow for the broadcast and sale of certain films and programmes on a much wider basis.   

• A recommendation that “format-shifting” of recordings should be made legal, enabling private users to convert recordings between different media and reproduction devices. However a general private copying exception was not recommended.

• The Review also proposes some very modest extensions of the “fair dealing” provisions which allow for certain restricted and limited educational and library digital copying in circumstances where there would otherwise be infringements. The Review wants to see a broader category of “fair use” exceptions in line with those in the USA. 

• At present, people cannot reproduce so-called “orphan works” - copyright protected works for which the rights owner cannot be identified. The Review recommends two solutions: first, that the Patent Office issues guidance on what constitutes reasonable searches to identify copyright owners and, second, by requesting the European Union to allow for general re-use of orphan works.

• The Review recommends increasing the criminal penalties for digital copyright infringement by web-based businesses.

• The Review has acted in response to comments from many claimants that damages equivalent to commercial royalties do not represent a sufficient deterrent. In the US, successful claimants can receive multiple damages. The likelihood of any effective action on damages will now await a pending review of civil damages generally by the Department of Constitutional Affairs.

• The Review would like trading standards officers to have power to act over counterfeit products which infringe copyright but not necessarily trade marks (they have this power already). £5 million has been made available to trading standards departments over the next two years specifically for intellectual property enforcement.

• The Review has recommended the fast-tracking of certain trade mark applications at higher cost. This should allow UK trade mark applications to proceed much faster than the usual 8 or 9 months from filing to registration.

• Although intellectual property litigation is an expensive business, the Review makes no real recommendations, although it mentions fast tracking of appropriate cases (something which is already available in intellectual property cases) and suggests further consideration in due course. Further suggestions in the Review recommend that practical steps are taken by the Patent Office to develop a greater general awareness of intellectual property rights and more widespread use of alternative dispute resolution techniques.

The Gowers Review is a welcome step in the right direction, although it missed opportunities to recommend much-needed reforms. Nevertheless it does appear that new legislation and Patent Office practice will follow, which will have implications for intellectual property rights owners for some time to come.  

For more information, contact Laurie Heizler on 01926 880749 or email laurie.heizler@wrighthassall.co.uk