update 27-05-2012 : latest link to published version on BIS select committee site now seems to be : http://www.publications.parliament.uk/pa/cm201012/cmselect/cmbis/writev/1498/m16.htm
Hargreaves Review of Intellectual Property
Submission to Business, Innovation and Skills Committee
From: Peter Carroll (contact details supplied under separate cover)
Date: 05 September 2011
I am submitting this in a personal capacity. I am an ex-IT manager,now retired. Since retirement I been working on a project (Scibella.com) to set up a Current Research Information System (CRIS) covering scientific technical and medical (STM) public sector research in UK universities and Research Councils. Further background to the Scibella project can be found in my submission  to the Hargreaves Review .
Summary of submission:
I have structured my submission around the Government response  to the Hargreaves Review.
- Evidence based approach. Should apply to online enforcement of IP infringement – Digital Economy Act 2010. Should extend to legal evidence and opinion behind draft legislation arising from Hargreaves Review.
- Digital Copyright Exchange (DCE). Public sector research outputs are not just papers published in scientific journals there is also a lot of information about current research on university & research council websites. The aim of this website information is to “translate & engage” research for envisaged users. At present re-use of this information is restricted to non commercial private research and study. This creates a “pull” model of information flow. Permission to commercially re-use involves many separate negotiations which inhibits the setting up of innovative firms who could “push” the information out to the widest audience. The same applies to the Open Educational Resource materials being developed by universities for on-line education. There is an important role for the DCE so that these materials can be easily and fairly licensed for commercial re-uses. JISC could also play an important sector co-ordinating role in getting these materials into the DCE as soon as possible.
- Exceptions to copyright. Exception for quotations (section 30 of CDPA) needs to be extended to accord with EU Infosoc Directive Article 5.3 (d). Gowers Review 2006 recommendation 11 transformative use exception (limited, for now, to research) could be introduced into UK legislation. Clear exemption from definition of works covered by copyright for metadata.
1. Evidence based approach
The Government responses states that:
1.1 “To deal with the second concern, the Government will in future give limited weight in IP policy-making to evidence that is not sufficiently open and transparent in its approach and methodology, and we will make it clear where we are taking this view. IPO will set out guidance in Autumn 2011 on what constitutes open and transparent evidence, in line with professional practice.” [3 p:3]
1.2 To practice what it preaches this evidence based approach must be applied to the cost-benefit analysis of the impact of Government legislation in the area of Intellectual Property. There is little point in revisiting IP legislation that has already been fully implemented. However, where implementation is still under consideration this would be of value in establishing the appropriate level of public resource to be allocated [see para 1.5 below]. Therefore, I think this approach should be re-applied to the BIS cost benefit analysis carried out for the Digital Economy Act2010” . The £200M a year benefit of the act is based on a key assumption:
“Costs to digital product consumers are not monetised since this content is only available illegally; US evidence indicates that were this cost to be monetised it could outweigh the monetised benefits” [4: p54]
1.3 Good morality but poor economics. As the Hargreaves Review [2 :section 8.15] noted “money not spent on legal copies is not lost to the economy – it may be spent on other purchases. This is of no comfort to the sector suffering losses, but the effects across the economy will not necessarily be problematic.”
1.4 The Hargreaves Review [2:section 8.48] concluded about online enforcement in the UK
“At this moment, given our state of knowledge, no-one in the UK could make an informed
assessment of what is the right level of resource for online enforcement in the UK. We can only guess and get on with it, using rigorous evaluation to develop the kind of cost-benefit framework described by WIPO”
1.5 The WIPO framework referred to is:
“Turning to policy, it is optimal for governments to devote a level of public spending on
law enforcement, such that the marginal benefit of fighting IPRs violations equals the
marginal cost of enforcement activity. The marginal benefit includes the welfare effects
outlined in Section 3. The marginal cost includes the opportunity cost of not using scarce
fiscal resources to provide other public goods” [5: para 66]
To demonstrate the Government’s commitment to evidence based IP policy re-evaluate the cost-benefit analysis for the Digital Economy Act 2010 in line with Hargreaves Review section 8.48
1.7 However, the need for “open and transparent evidence” is not just limited to economic evidence. In the area of Intellectual Property, legal and economic evidence is inextricably interlinked- a point addressed in supporting document J to the Hargreaves Review . The economic framework for IP arising from the Hargreaves Review will be determined by changes made to UK and EU law.
1.8 Whilst in progress the Hargreaves Review was often called by certain sections of the media “The Google Review”- that it was all about the possible introduction of US style “fair use” legislation in the UK. In the end the Hargreaves Review [2: sections 5.18-5.19] said:
“Evidence considered by the Review on the legal arguments about the feasibility of introducing Fair Use into the EU legal framework and so into the UK is violently diverse. It ranges from those who argue that it could, in effect, be achieved within the terms of current EU law,(viii) to those who see this as definitively impossible…..The advice given to the Review by UK Government lawyers is that significant difficulties would arise in any attempt to transpose US style Fair Use into European law. It is against this background that the Review has stuck to its Terms of Reference and sought to isolate the particular benefits for economic growth that Fair Use exceptions provide in the US, with a view to understanding how these benefits can be most expeditiously obtained in the UK…….viii Analysis provided to the Review by Professor Lionel Bently”
1.9 I was intrigued by footnote viii and by the “advice given to the Review by UK government lawyers”. So, I submitted a FOI request to the IPO asking for a release of Professor Bently’s analysis and the legal advice to the Review.
1.10 Professor Bently is the Director of the Centre for Intellectual Property and Information Law at the University of Cambridge and a eminent barrister and his analysis “Exploring the Flexibilities Available to UK Law” has now been published in full by the IPO .
1.11 Regarding the legal advice to the Review by UK Government lawyers the IPO has refused to release any information as it is covered by legal professional privilege (LPP) and I have now asked the IPO for an internal review of this decision.
1.12 With the publication of Professor Bently’s analysis we now have on one side a open and transparent body of evidence setting out the “flexibilities available to UK law”. On the other we have advice very probably of a quasi-evidential nature, and of equal quality, from the UK government lawyers but because of the application of legal advice privilege it can be, at best, only partially disclosed.
1.13 In the light of the Government response that they “will in future give limited weight in IP policy-making to evidence that is not sufficiently open and transparent in its approach and methodology”, to which body of evidence should they give most weight in policy making?
That the open and transparent approach to economic evidence set out in the Government response be extended to the fullest extent possible to the legal evidence and opinion behind draft legislation arising from the Hargreaves Review.
2. Digital Copyright Exchange (DCE)
The Government responses states that:
2.1 “The Government will work to ensure that Crown copyright materials are available via the exchange from day one, or as soon as possible thereafter, and will encourage public bodies to do likewise” [3 :p5 ]
2.2 The outputs of public sector research are not just published scientific articles, patents, IP licensing, or data-sets. There is also a very large amount of “grey literature” about current research published on research council grants websites & grant databases, university departmental & unit websites, researchers home pages, blogs etc..
2.3 Arecent NESTA-RIN report [8:p14] characterised these research outputs as the “translating and engaging” part of the research cycle :
“involving the envisaged users of the research in actual or potential applications of it, in other
research fields, commercialisation or policy” ..by means of “General articles, web pages, briefings,
public exhibits, presentations” .
2.4 It would seem obvious that the widest dissemination, within and beyond the UK, of this “translate & engage” information would be of great economic value. However, at present, nearly all of this information is only available under terms & conditions which limit its use to non-commercial private research & study. Re-use for any other purpose is forbidden without “express written consent” – even if you are a non-commercial academic researcher. Getting this express permission, and perhaps negotiating license terms, from over 100 separate universities and institutions is a long and daunting task. From initial experience I know that it is not easy in many cases to find who to contact.
2.5 This emphasis on non-commercial private research & study seems to me to hark back to a vision of university research as a “club for gentlemen & scholars ” untainted by industrial or commercial concerns. Times have changed as have academic attitudes but a “pull” model of information flow persists. If you are a fellow academic in the same discipline you will know who to look for, where to look. There also needs to be a “push” model to maximise dissemination and consequent economic benefits. The best chance for this push model to happen will be commercial incentive to set up innovative firms. These firms will not be set up unless they can easily and fairly license the re-use of “translate and engage” information for commercial purposes.
2.6 The push model based around innovative firms also applies to the high quality Open Educational Resources (OER) that UK universities are creating to support on-line education. To lapse into marketing jargon, “University UK” is a strong global brand as witnessed by the large number of overseas students wishing to study in the UK. The potential world market for “University UK” distance learning is very large but again the role of innovative companies working with UK universities will be essential.
2.7 The role of the Digital Copyright Exchange in making all this happen, as soon as possible, after it has been set up is vital. There already exists in the Joint Information Systems Committee (JISC)  an organisation with substantial experience in licensing and legal issues, and the development of OER resources, who could coordinate activity across the university sector in placing material into the DCE.
In addition to working to ensure that Crown Copyright materials are available via the DCE from the start the Government should prioritise work to ensure that the “translate and engage” & OER materials from UK university and research councils are also available via the DCE from the start, or as soon as possible thereafter.
3. Exceptions to copyright
3.1 The Government responses states that:
“the Government agrees with the Review’s central thesis that the widest possible exceptions to copyright within the existing EU framework are likely to be beneficial to the UK, subject to three important factors:
• That the amount of harm to rights holders that would result in “fair compensation” under EU law is minimal, and hence the amount of fair compensation provided would be zero. This avoids market distortion and the need for a copyright levy system, which the Government opposes on the basis that it is likely to have adverse impacts on growth and inconsistent with its wider policy on tax.
• Adherence with EU law and international treaties.
• That unnecessary restrictions removed by copyright exceptions are not re-imposed by other means, such as contractual terms, in such a way as to undermine the benefits of the exception. The Government will therefore bring forward proposals in autumn 2011 for a substantial opening up of the UK’s copyright exceptions regime on this basis..” [3: pp 7-8]
3.2 First, I would draw the committee’s attention to section 2, “Flexibility within Art.5”, of the analysis provided by Professor Bently to the Hargreaves Review [7 :pp 5-11]. This section addresses directly the Government response:
“the Government agrees with the Review’s central thesis that the widest possible exceptions to copyright within the existing EU framework are likely to be beneficial to the UK, subject to three important factors”
3.3 In particular I would draw attention to Professor Bently’s paragraphs covering copyright exceptions for quotations:
“It is worth noting in particular the breadth of Art 5(3)(d) that permits quotations. This goes well beyond the current definition of ‘fair dealing for criticism or review.’ Expanding the UK defence to cover all quotations (not just those made for criticism or review) would be a very useful amendment…” [7: para 29 ]
“what I would like to draw your attention to here is the mandatory nature of this exception. The international law of copyright requires the UK to adopt a broader exemption than that currently provided by section30.” [7: para 31]
3.4 Section 30 of the Copyright, Designs and Patents Act 1988  provides an exception to copyright for:
“Criticism, review and news reporting…(1)Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement [F1 and provided that the work has been made available to the public]..”
3.5 This section of the CDPA is the transposition into UK law of Article 5.3(d) of the EU Infosoc Directive  which states that an exception applies to :
“(d) quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose.”
3.6 The critical difference here are the words “for purposes such as” in the EU directive and “the purpose of” in section 30 of the CDPA. The EU directive clearly uses “criticism or review” as examples of excepted uses, section 30 restricts that exception to the sole purpose of criticism or review.
That section 30 of the CDPA be revised to enlarge its scope in line with article 5.3(d) of the EU Infosoc directive.
3.8 Second, the Government response notes that:
“The Government sees the areas where copyright restricts activity to no direct commercial benefit as doubly wasteful: neither new opportunities nor incentive to invest in copyright works result from them. Nor does the Government regard it as appropriate for certain activities of public benefit such as medical research obtained through text mining to be in effect subject to veto by the owners of copyrights in the reports of such research, where access to the reports was obtained lawfully. We recognise that some publishers view licensing of text mining as a legitimate commercial opportunity; however we are not persuaded that restricting this transformative use of copyright material is necessary or in the UK’s overall economic interest.” [3 :p7]
3.9 I have already set out the public benefits of wider access to current research materials on university and research council websites in section 2 of this submission. I am sure that use of the information in expired vacancy adverts for public sector scientific research posts, as the basis for a CRIS [1:pp 2-3], is a “transformative use of copyright material” in accord with the Government response above. However, both present EU [11: article 5.3 (a) ] and UK[10: section 29] legislation restricts the exception for research to a “non-commercial purpose”. The answer could be to revisit the possibility of introducing recommendation 11 of the Gowers Review:
“4.88 Recommendation 11: Propose that Directive 2001/29/EC be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test.” directly into UK legislation – with, for now, a limitation of the exception to the area of research.
3.10 That this could be possible has been covered both in Professor Bently’s submission [7 :para 45 et sec ] and my own submission [1: pp 4-5] to the Hargreaves Review.
Introduction into UK legislation of recommendation 11 of the Gowers Review 2006 with a limitation of the exception, for now, to the area of research.
3.12 Third, metadata on scientific and other research outputs (researcher name, organisation name, title of work, abstract etc..) has traditionally been excluded from copyright. However, in the light of the recent Meltwater v NLA decision  that copyright can reside in a title and very small portions of a text there is a risk that metadata for scientific and other research could now fall within the scope of UK copyright legislation. This is an area covered in Professor Bently’s submission [7: paras 118-127] and my recommendation follows his paragraph 127
Amend section 3 of the Copyright, Designs and Patents Act 1988 to state: “Copyright does not subsist in names, titles, items of bibliographical data or metadata.”
1. Submission to Hargreaves Review – Scibella
2. Hargreaves Review into Intellectual Propery & Growth.
3. The Government Response to the Hargreaves Review of Intellectual Property and Growth
4. Digital Economy Act 2010 Impact Assessments April 2010 http://webarchive.nationalarchives.gov.uk/20100511084737/http:/interactive.bis.gov.uk/digitalbritain/wp-content/uploads/2010/04/Digital-Economy-Act-IAs-final.pdf
5. WORLD INTELLECTUAL PROPERTY ORGANIZATION GENEVA
ADVISORY COMMITTEE ON ENFORCEMENT Fifth Session Geneva, November 2 to 4, 2009
ENFORCING INTELLECTUAL PROPERTY RIGHTS: AN ECONOMIC PERSPECTIVE
6. Dnes A,2011 ALaw and Economics Analysis of Fair Use Differences Comparing the US and UK, Report for the Review of IP and Growth
7. Professor L Bently. Exploring the Flexibilities Available to UK Law. Submission to Hargreaves Review
8. Open to All? Case studies of openness in research
9. Joint Information Systems Committee
10. Copyright, Designs and Patents Act 1988
11. Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society
12. Gowers Review of Intellectual Property 2006
13.  EWCA Civ 890