[Ecommerce] Fwd: [A2k] MIP on Gowers Review

[Michelle Childs]

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[ Picked text/plain from multipart/alternative ]
Note big changes for patent office
Michelle

Begin forwarded message:

> From: Manon Ress <manon.ress@cptech.org>
> Date: December 6, 2006 11:36:07 AM EST
> To: a2k discuss list <a2k@lists.essential.org>
> Subject: [A2k] MIP on Gowers Review
>
> Gowers: IP should be faster, fairer, clearer
>
> James Nurton and Emma Barraclough, London
> http://www.managingip.com/?
> Page=3D9&PUBID=3D198&ISS=3D23067&SID=3D666465&LS=3D452
>
> Fast-track patent and trade mark filing, clarification of the private
> use copyright exception and heavier penalties for piracy and
> counterfeiting were three key recommendations from the Gowers Review
> of IP in the UK, which was published today.
>
> The Review makes 54 recommendations over 141 pages and covers
> balance, coherence, flexibility, operations, use, enforcement and
> governance of intellectual property in the UK. The Review was
> endorsed by the Chancellor of the Exchequer in his Pre-Budget Report,
> and the government has said it will implement all those
> recommendations for which it has responsibility.
>
> In his foreword, Gowers said: "I do not think the [UK IP] 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." He added that the
> recommendations are concentrated on the areas of strengthening
> enforcement, reducing costs of registering and litigating and
> improving the balance and flexibility of IP rights in the digital age.
>
> Initiatives for SMEs
> Gowers identifies "speed to market" as the single biggest issue for
> successful, innovative companies and says that "timely protection for
> patents and trade marks" is crucial. He therefore recommends
> improving the Patent Office's fast-track patent application system to
> allow for an "accelerated grant process" as well as a fast track
> registration for trade marks (recommendation 25) that would allow
> publication of trade marks within 10 days for a higher fee. This
> sounds similar to fast-track systems available in registries such as
> the Benelux.
>
> However, the Review also recommends that patent fees should be
> increased "as domestic patents operations do not cover their
> costs" (recommendation 50). The Patent Office now only covers the
> cost of registering patents through renewal fees, and then only if a
> patent is held for 14 years =96 which most are not. Income from renewal
> of European patents is unpredictable and should not be relied on,
> says the Review. It does not recommend how much fees should be
> increased by
>
> The Review suggests tweaking a number of areas where UK law is not
> meeting the needs of users. For example, Gowers notes (in
> recommendation 1) that "it is not entirely clear what uses fall
> within the scope of the experimental use exception". The Review
> recommends that "the experimental use exception should be clarified
> to enable researchers to examine, learn from and improve upon
> inventions" and cites the recently changed Swiss research exemption
> as a model.
>
> Enforcement
> Anyone who infringes IP online on a commercial scale should face the
> same penalties as traditional infringers, says Gowers. He recommends
> that the government change the law so that online infringers face up
> to 10 years in jail, rather than two, to bring penalties for the
> offence in line with those for physical infringement (recommendation
> 36). The penalty for online infringement by consumers "to an extent
> that prejudicially affects the rights holder" should also be extended
> to 10 years.
>
> Businesses that struggle to use British laws to tackle rivals who
> adopt copycat packaging have won support from Gowers. He says that
> the common law of passing off "does not go far enough" to protect
> many brands and designs from misappropriation and recommends the
> government monitor how well the new European directive on unfair
> commercial practices, now being transposed into UK law, helps brand
> owners. Gowers says that if the new measures do not address the
> problem adequately, the government should consult on further changes
> to the law.
>
> He also recommends that police action against organized crime should
> consider IP crime (recommendation 41) and that the enforcement
> agency, Trading Standards, be given the power to tackle copyright
> infringement (recommendation 42).
>
> One of the main concerns of many rights owners in the UK is the cost
> of enforcement in the courts. Gowers notes that attempts to reduce
> litigation costs in the UK have had a limited impact in IP cases, as
> most involve disputes worth more than =A315,000. "Many of the benefits
> of the fast track system, such as capped costs, limited trial lengths
> and limited discolsure, do not apply to IP cases," says Gowers, and
> this has reduced the cost-effectiveness of the Patents County Court.
> Although he stops short of concrete recommendations, he does
> speculate that the =A315,000 limit could be raised for IP cases and
> legal fees could be capped. Gowers suggests that the relevant
> government department should consider the issues and make proposals
> by the end of 2007.
>
> He also encourages arbitration and mediation in general terms: "The
> costs of dispute resolution should be reduced by greater availability
> and use of alternative dispute resolution."
>
> Patent Office overhaul
> When implemented, the Review will lead to major changes at the Patent
> Office, which reflects the shift towards a body focusing on policy,
> training and education rather than one that just registers rights.
> Gowers proposes that the Patent Office should be renamed the UK
> Intellectual Property Office, to reflect its wider role, and makes
> specific recommendations on how it can work with SMEs to provide
> information and advice to small companies.
>
> This includes providing information to new firms registering at
> Companies House, establishing formal collaboration between the Office
> and Business Link, providing advice to UK firms working overseas,
> developing model IP licences and publishing an open standards web
> database (recommendations 26 to 34). The Department for Trade and
> Industry should also consider providing model IP reports.
>
> Gowers says that the Patent Office's financial reporting should be
> more transparent and there should be a clear separation of
> responsibility for granting rights and settling disputes
> (recommendations 51 and 52).
>
> The Patent Office should also provide an "annual IP strategic
> analysis fund" of =A3500,000 ($950,000) and divide up its delivery and
> policy directorates (recommendations 47 and 48). Gowers recommends a
> pilot study of the Community Patent Review, which is being led by New
> York Law School's Beth Noveck, and the development of stronger links
> with universities (recommendations 23 and 24). Policy staff should go
> on industry placements (recommendation 49).
>
> In more wide-ranging policy recommendations, Gowers suggests that a
> new Strategic Advisory Board for IP policy, reporting to the
> government, should be created by 2007 (recommendation 46). This
> should be funded by the Patent Office, but should include
> representatives from government, academia, consumer groups and
> industry.
>
> Copyright and the internet
> Many of Gowers's recommendations focus on adapting copyright to the
> internet age. Recommendations 8 and 9 propose the introduction of
> limited private copying exceptions, such as exist in Germany and
> France, to enable users to, for example, copy music from a CD on to
> an MP3 player. Gowers recommends that "a limited private copying
> exception ... for format shifting" be introduced from 2008 and also
> that the law should "allow private copying for research to cover all
> forms of content". But the Review comes down against a copyright levy
> (the UK is one of only three European countries that does not have a
> levy).
>
> Gowers also recommends that the UK seek to amend the EU enforcement
> directive to allow an exception for "creative, transformative or
> derivative works" (recommendation 11). This would clarify, for
> example, the rights of hip hop musicians who sample others' music as
> is allowed in the US. A similar exception for caricature, parody and
> pastiche should be introduced into UK law by 2008 (recommendation
> 12). This would comply with EU law, says Gowers.
>
> As expected, Gowers resisted pressure from musicians such as Cliff
> Richard to push for the 50-year term of copyright protection for
> recorded works to be extended in Europe (recommendation 3). He also
> says that the term of protection for IP rights should not be changed
> retrospectively.
>
> As part of the review of the copyright term for recorded works,
> Gowers commissioned a report from the Centre for IP and Information
> Law at Cambridge University. This found that the case for extending
> the copyright term in sound recordings is "weak" and "will likely
> result in a net loss to UK society as a whole", in particular by
> having a negative effect on the balance of trade. "The case for an
> extension would have to be especially compelling to make it
> preferable to keeping terms at its current length" and it would be
> "inadvisable" to extend the term, says the report.
>
> Gowers also addressed the problem of orphan copyright works. To deal
> with this, he recommends that the UK propose that the EU draft a
> provision on orphan works (recommendation 13) and the Patent Office
> should introduce a voluntary copyright register (recommendation 14).
>
> International implications
> Though the Review focuses on UK policy, it highlights a number of
> areas where the UK can act to address overseas issues. Gowers says
> that the UK should work internationally to promote IP and
> development. In particular, the UK should help to develop IP rights
> in Africa, to give least-developed countries more time to comply with
> the TRIPs Agreement and to promote the TRIPs amendments on drugs
> importation (recommendations 5, 6 and 7).
>
> He also recommends that the Patent Office promote harmonization and
> work sharing between IP offices in Europe and between the trilateral
> patent offices (recommendations 18 and 19) and supports the UK
> position in favour of the Community Patent, London Agreement and
> European Patent Litigation Agreement, which should lead to cost
> savings for patent applicants in Europe.
>
> The Review was commissioned by Chancellor of the Exchequer Gordon
> Brown in December last year. Its remit was to review all aspects of
> the IP system in the UK and make recommendations for changes to
> policies. A call for evidence in February prompted some 500 written
> comments from interested parties. Gowers was asked to examine
> instruments (IP rights), operation (how IP is awarded, licensed and
> enforced) and the governance structure related to IP.
>
> The submissions from individuals and organizations can be accessed on
> the Review's homepage.
>
> Reaction to the Review will be published on www.managingip.com
> shortly.
>
> MIP will host a discussion on the recommendations in the Gowers
> Review, in which Andrew Gowers will take part, on January 30 2007.
> More details will be available soon.
>
> MIP Week welcomes your feedback on this or any other story. Please
> email the author with your comments. Letters may be published online.
>
> ************************************************
> Manon Anne Ress
> manon.ress@cptech.org,
> www.cptech.org
>
> Consumer Project on Technology
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>
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>
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