The Gowers Review Of Intellectual Property

Originally published in Lawrence Graham's 'SmartLaw' newsletter, March 2007

Lawrence Graham LLP

The eagerly awaited Gowers Review of Intellectual Property was published on 6 December 2006. With the potential to be the biggest shake-up of UK intellectual property law for years, the Review has been welcomed by some, but criticised by others. So what was the Review all about and what impact will it have on intellectual property owners and users?

A tall order

The Chancellor of the Exchequer announced the Review in his 2005 Pre-Budget Report. It would be led by Andrew Gowers, a former editor of the Financial Times. Its remit would be to analyse and report within a year on the performance of the entire intellectual property (IP) system in the UK, and then to make recommendations for specific changes and policy improvements. A tall order by any standards.

The government wanted to know whether the UK's IP system is "fit for purpose in an era of globalisation, digitisation and increasing economic specialisation". Broadly speaking, the answer that came back was yes but with some room for improvement.

Overall Gowers has made 54 recommendations. Most of these focused on strengthening the enforcement of IP rights, reducing the cost of registering and litigating IP, and improving the balance and flexibility of IP rights to allow their use in a way consistent with the digital age.

The key recommendations include:

Copyright

A new exception to copyright infringement to allow 'format shifting' (by 2008)

The illegal practice of format shifting - copying music from a legitimately bought CD to a legitimately bought MP3 player, for example - is now widespread. The proposed change would allow a user to copy content between media and/or technologies for personal use, but it would not extend the freedom to other kinds of copying for private use.

This proposal appears to be good news for consumers, although there is a danger that if the exception is implemented, rights owners will increase content prices to compensate for subsequent copying. Worse still, the exception would apply only to copyright works published after the new law came into effect. So it would be legal to copy new tracks onto an iPod, but still illegal to do the same to older ones. How this would work in practice is not made clear.

A new exception to copyright infringement to allow creative, transformative or derivative works

The focus here is on new works that rework copyright material...