Gowers (2006)

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Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Gowers (2006)
Title: Gowers Review of Intellectual Property
Author(s): Gowers, A.
Year: 2006
Citation: Gowers, A. (2006). Gowers Review of Intellectual Property. The Stationery Office.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by: Bmrb Social Research (2009), Brassell and Goodyer (2015), Brooks (2005), Favale, Homberg, Kretschmer, Mendis and Secchi (2013), Greenhalgh, Phillips, Pitkethly, Rogers and Tomalin (2010), Guibault, Westkamp and Rieber-Mohn (2007), Hargreaves (2011), Hooper and Lynch (2012a), Kretschmer and Towse (2013), Ofcom-Kantar (2013), Rogers, Corrigan, and Tomalin (2010), Vetulani (2008), Vuopala (2010), Waelde, Kheria and Levin (2015)
About the Data
Data Description: The Gowers Review of Intellectual Property covers the 4 core elements of IP: Copyright, Designs, Patents and Trademarks.

Specific to copyright the review draws on a broad range of primary (research commissioned for the report and responses to calls for evidence) and secondary sources.

The primary source data includes research commissioned by Gowers including from the Centre for Intellectual Property and Information Law (CIPIL) at Cambridge University. This research has also been published independently of the review.

The Review call for evidence elicited 517 responses and a petition on extending copyright term for sound recordings. These responses varied from submissions by individuals (including creators, representatives and academics) to those made by corporate stakeholders (collecting societies, public sector organisation and trade bodies among others).

The secondary source data is largely drawn from two distinct types of source: industry data (e.g. annual statements, industry generated research) and academic studies of relevant issues (e.g. Brooks 2005).

Data Type: Primary and Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: Yes
Time Period(s) of Collection:
  • Pre-2006
Funder(s):
  • HM Treasury

Abstract

For many citizens, Intellectual Property (IP) is an obscure and distant domain – its laws shrouded in jargon and technical mystery, its applications relevant only to a specialist audience. And yet IP is everywhere. Even a simple coffee jar relies on a range of IP rights – from patents to copyright, designs to trade marks.

In the modern world, knowledge capital, more than physical capital, drives the UK economy. Against the backdrop of the increasing importance of ideas, IP rights, which protect their value, are more vital than ever. The ideal IP system creates incentives for innovation, without unduly limiting access for consumers and follow on innovators. It must strike the right balance in a rapidly changing world so that innovators can see further by standing on the shoulders of giants.

The Government’s decision to commission this Review was an explicit recognition both of the growing importance of IP and of the challenges brought by the changing economic environment. In commissioning the Review, the Chancellor and the Secretaries of State for Trade and Industry, and Culture, Media and Sport asked me to establish whether the system was fit for purpose in an era of globalisation, digitisation and increasing economic specialisation.

The answer is a qualified ‘yes’. I do not think the system is in need of radical overhaul. However, taking a holistic view of the system, I believe there is scope for reform to serve better the interests of consumers and industry alike. There are three areas in which the Review concentrates its recommendations to improve the UK framework for innovation:

• strengthening enforcement of IP rights, whether through clamping down on piracy or trade in counterfeit goods; • reducing costs of registering and litigating IP rights for businesses large and small; and • improving the balance and flexibility of IP rights to allow individuals, businesses and institutions to use content in ways consistent with the digital age.

Much IP policy is framed by European, and indeed global, treaties and agreements. I recognise that not all the recommendations are within the direct purview of the UK Government. However, I have not shied away from making recommendations with European or broader international import when they seemed necessary. Indeed, with the European Commission currently reviewing both the copyright acquis and the question of a Community patent, this is a timely point at which to put forward the Review’s arguments.

I would like to express my thanks to all those who assisted me in producing this Review. Many individuals and organisations gave generously of their time to contribute insights, and in particular the great diversity and depth of responses to the Call for Evidence were invaluable. I owe a special debt to the Review team, who have supported me throughout: Richard Sargeant, Steve Coles, Alastair Cowie, Suzy Kantor, Nicola Kay, Stephen Rowan and Nathan Sansom.

I hope this Review provides sound recommendations on how the IP regime should respond to the challenges that it faces. Getting the balance right is vital to driving innovation, securing investment and stimulating competition. Lasting success will belong to those who get this right.

Main Results of the Study

"The Review found the current system to be broadly performing satisfactorily. However, there are a number of areas where reform is necessary to improve the system for all its users. The Review therefore sets out a range of pragmatic recommendations, which can be grouped around three themes: first, stronger enforcement of rights; second, lower costs for business; and finally, balanced and flexible rights."

From these conclusions the review makes a considerable number of policy recommendations which can be found below.

Policy Implications as Stated By Author

The review states the following about instruments of Intellectual Property (IP); patents, copyright, trade marks and designs.

• balance; the instruments should ensure that the incentive to innovate is balanced against the ability of follow-on innovators to access knowledge.

• coherence; the instruments should be clear and consistent; the scope of rights should not change retrospectively in order to ensure trust in the system; and the international system should promote innovation in all countries.

• flexibility; the instruments should be flexible in order to respond to the changing economic environment and the needs of rights holders and users.

The Review has made a number of recommendations to improve the framework for innovation; in particular it has called for:

• stronger enforcement of IP rights to ensure practical protection is provided for rights owners and effective deterrents to infringement are in place.

• lower operational costs for business, simplifying processes such as licensing and litigation, and improving education and advice.

• greater balance and flexibility of IP rights to allow individuals, businesses and institutions to use information and ideas in ways consistent with the digital age.

Specific to copyright the review made the following key recommendations:

  • Enable educational provisions to cover distance learning and interactive whiteboards by 2008 by amending sections 35 and 36 of the Copyright, Designs and Patents Act, 1988 (CDPA).
  • The European Commission should retain the length of protection on sound recordings and performers’ rights at 50 years.
  • Policy makers should adopt the principle that the term and scope of protection for IP rights should not be altered retrospectively.
  • Introduce a limited private copying exception by 2008 for format shifting for works published after the date that the law comes into effect. There should be no accompanying levies for consumers.
  • Allow private copying for research to cover all forms of content. This relates to the copying, not the distribution, of media.
  • Amend s.42 of the CDPA by 2008 to permit libraries to copy the master copy of all classes of work in permanent collection for archival purposes and to allow further copies to be made from the archived copy to mitigate against subsequent wear and tear.
  • Enable libraries to format shift archival copies by 2008 to ensure records do not become obsolete.
  • Propose that Directive 2001/29/EC be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test.
  • Create an exception to copyright for the purpose of caricature, parody or pastiche by 2008.
  • Propose a provision for orphan works to the European Commission, amending Directive 2001/29/EC.
  • The Patent Office should issue clear guidance on the parameters of a ‘reasonable search’ for orphan works, in consultation with rights holders, collecting societies, rights owners and archives, when an orphan works exception comes into being.
  • The Patent Office should establish a voluntary register of copyright; either on its own, or through partnerships with database holders, by 2008.
  • Match penalties for online and physical copyright infringement by amending section 107 of the CDPA by 2008.
  • Monitor success of current measures to combat unfair competition in cases relating to IP, and if changes are found to be ineffective, Government should consult on appropriate changes.
  • DCA should review the issues raised in its forthcoming consultation paper on damages and seek further evidence to ensure that an effective and dissuasive system of damages exists for civil IP cases and that it is operating effectively. It should bring forward any proposals for change by the end of 2007.
  • Observe the industry agreement of protocols for sharing data between ISPs and rights holders to remove and disbar users engaged in ‘piracy’. If this has not proved operationally successful by the end of 2007, Government should consider whether to legislate.
  • The Home Office should recognise IP crime as an area for Police action as a component of organised crime within the updated National Community Safety Plan.
  • Give Trading Standards the power to enforce copyright infringement by enacting section 107A of the Copyright, Designs and Patents Act 1988 by 2007.
  • Strengthen Practice Directions, to provide greater encouragement for parties to mediate, in particular this should raise the profile of mediation with judges.
  • The Patent Office should consult with the Judicial Studies Board to determine the extent to which the complexity of IP law may give rise to a training need for judges and magistrates and their legal advisers.
  • Support the establishment of a single EU court to adjudicate cross-border IP disputes by promoting the European Patent Litigation Agreement.
  • Establish a new Strategic Advisory Board for IP policy (SABIP), covering the full range of IP rights, reporting to the minister responsible, by 2007. The Board should be drawn from a wide range of external experts as well as key senior policy officials from relevant government departments, and should be based in London. £150,000 should be allocated to fund the secretariat by the Patent Office.
  • The Patent Office should provide an annual IP strategic analysis fund of £500,000 managed by the policy advisory board in consultation with the IP Policy Directorate.
  • Patent Office should introduce a clear split of responsibility between delivery and policy directorates.
  • Encourage IP policy officials to obtain policy experience outside the IP Policy Branch, and support short industry placement schemes for policy staff.
  • Realign UK Patent Office administrative fees to cover costs more closely on Patent Office administrative operations (e.g. granting patents).

Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Green-tick.png
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Green-tick.png
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Green-tick.png
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Green-tick.png
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size: 517
Level of aggregation: Responses to Call for Evidence
Period of material under study: 2006