On 2 December 2005, the Chancellor, Gordon Brown, announced as part of his pre-Budget Review package that he would be asking Andrew Gowers, former editor of the Financial Times, to head a review of the UK's intellectual property (IP) framework. The backdrop to the Gowers Review was the UK Government's recognition of the increasing importance of knowledge-based industries in the global economy, especially in manufacturing, science and the creative industries.
Following his appointment, Gowers issued a Call for Evidence on 23 February 2006 in which he made clear that the Review would be broad in scope and that no aspect of the IP system was sacrosanct. The Review subsequently received over 500 submissions, from individuals, large multinationals, representative associations, law firms and many others. In the nine month period between the Call for Evidence and the publication of the Review's findings, Gowers' small team at the Treasury impressed with their many appearances at IP lectures and events, listening, learning and debating the issues with stakeholders.
Gowers eventually published his Report on 6 December 2006 (it is available on the internet at http://www.hmtreasury. gov.uk/media/583/91/pbr06_gowers_report_755.pdf). Introducing the Gowers Review in a press release issued on the same day, Gowers said: "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…".
The Report opens with an acknowledgment of the fact that knowledge-based industries have become central to the UK economy, but notes that while global and technological changes have brought opportunities for businesses and consumers, they have also brought challenges, such as the ease with which it is possible to distribute copyrighted material across the internet and the difficulties brought about by idiosyncratic, national IP rights in today's global economy.
Yet the overall message from the Gowers Review is that the current IP system is performing satisfactorily. Little is in fact said on some of the main registrable IP rights, such as trade marks and designs. More is said about patents and much more about the function of copyright in the internet era, although Gowers is pragmatic about the extent to which the UK Government - spurred on by the findings in the Report - may act to change the UK IP system, given that IP rights are now mostly creatures of EU law and thus subject to reform only at the European level. Nevertheless, Gowers has pointed out current weaknesses in the IP system, irrespective of whether they are European or UK level issues. He has left the UK Government to take forward his recommendations for change, at whatever the appropriate level.
The List of Recommendations made by Gowers is extensive: 54 in total, ranging from a simple change in the name of the UK Patent Office to the UK Intellectual Property Office (to reflect better the breadth of functions carried out by the Office), to more complicated measures to encourage the use of third party observations in the patent granting process.
There are three main themes to the recommendations in the Gowers Review:
- strengthening the enforcement of IP rights, whether through clamping down on piracy or trade in counterfeit goods;
- reducing the cost of registering and litigating IP rights for businesses, both large and small;
- improving the balance and flexibility of IP rights to allow individuals, businesses and institutions to use content in ways consistent with the digital age.
Under the rubric of strengthening the UK's enforcement regime, Gowers recommends that Trading Standards departments within local authorities should be given new powers against copyright infringers. In addition, Gowers would like to see concrete measures to ensure that damages are substantial enough to act as an effective deterrent to infringers in IP cases.
Some of the recommendations on litigating IP rights at the pan- European level are however lacking in vision. It is suggested with vain optimism that the Government should continue to support and expedite the establishment of the Community Patent through negotiations in Europe and that the London Agreement should be supported as an interim step towards the Community Patent. One feels that the courageous thing for Gowers to have said was that, looking back on a decade of debate, proposals and counter-proposals, no more taxpayers' money should be wasted on the Community Patent, a proposal that now seems stale and past its sell-by date.
Developing IP policy is another area where Gowers is less than convincing. One of his recommendations is for a 'clear split' of responsibility between the delivery and policy directorates at the Patent Office, which falls somewhat short of removing innovation policy from the IP-focussed Patent Office altogether and placing it within a department with a broader overall remit, including perhaps venture capital and other forms of seed funding. Gowers recommends the creation of yet another Government quango - a Strategic Advisory Board on IP Policy - to advise the Government on IP issues on an ongoing basis, although many practitioners will remember its forerunner, set up by the present Government in 2001 (the Intellectual Property Advisory Committee, or IPAC) that was eventually disbanded through lack of funds and clear direction.
On a more positive note, Gowers' best proposals relate to the modernisation of copyright in the digital era. Given that the original Government remit to the Review was to have been confined to copyright (it was widened by the Chancellor when it was announced in December 2005), it is perhaps not surprising that this area is where the Gowers' team seem to have focussed their energies in coming up with sensible, practical ideas. The introduction of a limited private copying exception for format shifting copyright works would legalise many acts that are now carried out by members of the public and against whom copyright laws are not enforced. The extension of the private copying exemption to cover all forms of content (other than just printed matter) is again a practical suggestion. Permitting libraries to copy the master copy of all classes of work in their permanent collections for archival purposes and to allow further copies to be made from the archived copy to mitigate against subsequent wear and tear are good proposals that will hopefully assist in the preservation of our cultural heritage. More controversially, Gowers rejected the extension of the 50 year term of copyright protection for sound recordings and related performers' rights, finding that that the evidence for change was not compelling.
In conclusion, the sheer volume of work that would need to be done if all of Gowers' recommendations were taken on board by the Government have led some to suspect that many would get shelved, especially in a year of Prime Ministerial transition. However, Gowers himself announced on 30 January 2007 that the Government intends to act on all of the Recommendations in his Review. To this end, a Gowers Implementation Team has been appointed within the Patent Office to ensure that the Recommendations are implemented, or to consult on reform, where Gowers has not made specific proposals but rather broad recommendations for change.