A welcome response to the Hargreaves Review

This morning brought a wave of very welcome good news. Ever since Professor Ian Hargreaves published his independent review of IP and growth in May, we’ve all been second guessing, praying about and trying to get inside news on the Government’s likely response.

This morning the Minister Vince Cable revealed that the Government is supporting the 10 recommendations that Professor Hargreaves made in his review, accepting the need for significant but sensible copyright reforms to allow a huge range of creatively and economically useful activity to take place. This is the kind of evidence-based, sensible policy making that has been lacking in copyright laws, and the Government deserves a lot of credit for supporting the findings.

The response includes support for new exceptions to copyright for format shifting and parody, amongst others. Moves to legalise parody are really welcome; providing people legal certainty for satirising and spoofing music, films and adverts is an increasingly important tool for creators and campaigners. We’ll be posting more on parody and exceptions soon, but for now you can read Consumer Focus’ parody briefing here. As I wrote when the report was published, these new exceptions will allow many socially and economically useful things to happen that will have little or no deterimental effects on the livelihoods of creators.

You can read the Government’s full response here. Alongside this there are new strategies from the IPO covering their international work and IP crime strategies. Again these look on first reading to be well balanced strategies, starting with a desire to work from the evidence. What a breath of fresh air for IP policy. For example, page 7 of the IP crime strategy sets out how a lack of evidence has restricted Government’s ability to make robust IP policy:

‘We agree with the US (report) that the lack of clear and credible data is a problem which needs to be urgently addressed. The lack of a clear picture on the scope and scale of IP crime and its impact poses a real problem for policy makers and for operational decision makers who must decide how to prioritise IP crime alongside other issues. We recognise that there are difficulties in quantifying criminal activity given that much of the trade takes place within the informal economy. However, even where figures are available it is impossible to compare sectors or aggregate impacts because of the range of methodologies.’

So lots of really good stuff in the responses from BIS and the IPO.

Alongside the announcement about the Hargreaves review was some news about the Digital Economy Act from DCMS. From a first glance this looks less impressive. For example it’s very disappointing to see a likely £20 fee for people appealing against allegations of infringement. Given how unreliable the evidence against infringers is likely to be (IP address evidence is shaky at identifying precisely who downloaded what, when), this is likely to be an unfair barrier to due process. It’s also disappointing that within the first page of their response, DCMS cite the kind of evidence that the Hargreaves Review and the IPO’s new strategies want to see the back of – what Hargreaves called ‘lobbynomics’.

DCMS have also published Ofcom’s report on the efficacy of the website blocking provisions of the Digital Economy Act. It finds that sections 17 and 18 of the DEAct are unworkable. The Government seem a little conflicted about the significance of this. The Ofcom report itself identifies speed and predictability as key factors in any effective blocking process. But they also identify technical deficiencies and the need for transparent and clear legal process for any blocking scheme to be considered fair.

The DEAct provisions don’t satisfy these criteria. Any voluntary scheme would certainly lack the appropriate due process. And it’s unclear whether the court processes under section 97A, the process used last week to order BT to block Newzbin, might be seen by rights-holders as too slow. So how blocking policy can square that circle is unclear.

At the same time, website blocking brings with it significant technological risks of over-blocking and of people actively route around blocking and doing some damage to existing measures preventing accidental access to child abuse images. Vince Cable today said enforcement has to be ‘proportionate to needs and based on evidence’, which is absolutely correct. Website blocking is neither.

So overall there’s a whole lot of good news today, which the Government and the IPO should be applauded for, with one or two sour notes. The evidence continues to stack up that the Digital Economy Act is policy made blind, and whilst sections 17 and 18 look likely to disappear, the remaining sections 3-16 remain on an albeit delayed course. The Government should follow the IPO’s new IP crime strategy and rebuild its copyright enforcement policy from scratch, driven by evidence and a proper, public consultation.

There are a lot of pages to go through and these are only first-look thoughts. If you can help us analyse what’s in the various reports, please let us know below. Help us emphasise the good news, sniff out the discordant notes, and highlight the most important bits!