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• Identification of barriers to growth in the IP system, and how to overcome them;
   
• How the IP framework could better enable new business models appropriate to the digital age.

The key recommendations which, if implemented, have the potential to make the greatest impact on the FE and HE sector are: 

• The establishment of a Digital Copyright Exchange, 
   
• The provision on orphan works,
   
• Removal of obstructions in the patent process which hinder innovation and the commercialisation of new technology,
   
• Extensions to the copyright exceptions and 
   
• The increased powers and mandate of the IPO in promoting an IP system which is responsive to change.
   

1. Digital Copyright Exchange

The review recommends that the UK should have a “Digital Copyright Exchange”: a digital market place where licences in copyright content can be readily bought and sold, a sort of online copyright shop.  This framework should include a range of incentives and disincentives to encourage rights holders and others to take part.  This recommendation, if implemented, would simplify rights clearance in providing access to materials held in universities and FE and HE colleges. 

2. Orphan Works Provision 

The Government should legislate to permit access to orphan works, content where the copyright owner is not identifiable.   The recommendations of establishing extended collective licensing for mass licensing of orphan works and a clearance procedure for use of individual works would enable learners and staff within the colleges and universities to access and re-use these works thereby supporting teaching, learning and research.  Potentially this would encourage mass digitisation of digital content on which services and innovation can be built. 

3. Obstructions to Innovation

In order to limit the effects of barriers to innovation, the Government should manage patent applications to avoid a dense web of overlapping intellectual property rights that must be tackled in order to actually commercialise new technology.  It should work to ensure patents are not extended into sectors, such as non-technical computer programs and business methods, which they do not currently cover, without clear evidence of benefit.  Any simplification of the patent process would be welcomed by FE and HE institutions. 

4. Updating Lawful Exceptions to Copyright

The review calls for extensions to the lawful exceptions to copyright some of which will require legislation at a national level to realise all the opportunities currently within the EU framework and others which will require changes at an EU level.  The proposals include the following:

• Exception for parody
   
• Private copying exception to allow individuals to make copies for personal and family use on different media.  This limited right includes format shifting (such as shifting music from a laptop to an mp3 player).  In order to bring clear benefits to the colleges and universities, an exception which made express reference to permitting format shifting for the purpose of non-commercial research or for teaching and learning may have been more beneficial.
   
• Extension of fair dealing for non-commercial research to all media.  Currently film, broadcast and sound recordings are not covered.
   
• Extension of preservation copying by archives and libraries to all works.  This will enable university and college libraries and archives to preserve content through digitisation thereby preventing loss.  The recommendation is limited to preservation and does not confer rights on accessing and using the digitised materials which would enable colleges and universities to provide e-only services giving users anytime, anywhere access and freeing up space and resources.
   
• Exception for text mining - the government should introduce a UK exception in the interim under the fair dealing for non-commercial research heading to allow use of analytics for non-commercial use, as well as promoting at EU level an exception to support text mining and data analytics for commercial use.  Text mining allows researchers to extract and manipulate information and data from a range of sources.  The change would have an enormous effect on the range and capability of UK research and would, for example, allow an academic working on malaria to draw on previous research through data mining.
   
• Exception to facilitate adaptability to new technologies - the review recommends that the UK should give a lead at EU level to develop a further copyright exception designed to build into the EU framework adaptability to new technologies.
   
• Ensuring that copyright exceptions cannot be over-ridden by contract law.

5. Changes to the Intellectual Property Office’s (IPO) Powers 

The IPO should be given the necessary powers and mandate in law to ensure that it focuses on its central task of ensuring that the UK’s IP system promotes innovation and growth through efficient, contestable markets.  It should be empowered to issue statutory opinions where these will help clarify copyright law.

6. Implementation?

There is no obligation on the UK government to implement any of the Hargreaves Review recommendations however within the report’s recommendations the following timescales for change are referenced: 

• The government should appoint a senior figure to oversee the design and implementation of the Digital Copyright Exchange by the end of 2012.
   
• The government should ensure that by end of 2013, the IPO publishes an assessment of the impact of those measures advocated in the review which have been accepted by government.

7. What are the Next Steps?

The Government will publish its substantive response to the Independent Review of IP and Growth before the summer parliamentary recess (2011).  

The Government wants to reflect on and consider the Review’s findings and come forward as quickly as possible with a well-thought out response. Where opportunities for growth exist, the Government must act as soon as possible to ensure those opportunities are realised. The Government Response will reflect the need for any further consultation. 

You can keep up to date with progress of these recommendations and other legislation on the Law Watch web pages on the JISC Legal website.

8. Further Information

Digital Opportunity - A review of Intellectual Property and Growth - An independent report by Ian Hargreaves.

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