Hargreaves Report: Patently Sensible Stuff

It's a measure of how central traditionally dry-as-dust subjects like copyright and patents have become to the modern (digital) world that the Hargreaves Report on the UK's “intellectual property framework” has been so eagerly...

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It's a measure of how central traditionally dry-as-dust subjects like copyright and patents have become to the modern (digital) world that the Hargreaves Report on the UK's "intellectual property framework" has been so eagerly awaited. That's partly because there is a clear sense that the current systems are dysfunctional and desperately need fixing, and that this report is an important opportunity to do something about it.

Or as Ian Hargreaves puts it in his introduction to what is now officially entitled "Digital Opportunity":

Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators' rights are today obstructing innovation and economic growth?

The short answer is: yes. We have found that the UK's intellectual property framework, especially with regard to copyright, is falling behind what is needed. Copyright, once the exclusive concern of authors and their publishers, is today preventing medical researchers studying data and text in pursuit of new treatments. Copying has become basic to numerous industrial processes, as well as to a burgeoning service economy based upon the internet. The UK cannot afford to let a legal framework designed around artists impede vigorous participation in these emerging business sectors.

Although that suggests the main focus of the report is on copyright, one of the most important recommendations of the report concerns software patents:

In Europe, in contrast to Japan and the US, there are restrictions laid down by the EPC on how far computer programs may be patented. Programs considered to make a "technical contribution" - such as controlling a robot, or making the internal operation of a computer more efficient – can be patented; general application programs – such as word processing software – cannot.

However, applications for patents on computer programs face differing interpretations of precisely where this boundary line lies on the part of the EPO and the UK IPO. The EPO, having started from a position similar to the UK, has in recent years become more open to awarding such patents than the IPO. Submissions to the Call for Evidence differed on the question of whether computer programs should be afforded patent protection, but many appealed for consistency between the IPO and the EPO.

This presents a dilemma for an evidence-based patent policy; the evidence points to significant benefits arising from European harmonisation (as discussed in Chapter 3), but also to the UK's current position of denying or at least severely restricting patents to non-technical computer programs. In this case, the Review believes the balance of evidence lies in continuing to withhold patent recognition of non-technical computer programs as part of a sustained effort to deal with the growing and dangerous
problem of thickets. The UK should seek to convince its European partners of the force of this case.

This is a very strong statement against any move to allow "technical" software patents, and judging by the supporting material [.pdf] on the subject, open source played quite a big role here:

The Open Source Software movement is a strong opponent of computer program patents. Open source development relies on developers allowing others free access to their computer programs. Copyright is the form of protection currently afforded to computer programs in the UK. Copyright offers valuable protection when the work of the inventor is contained in the expression of the idea, rather than the idea itself. (For example copying of as little as 1.7 per cent of a computer program's code has been sufficient to substantiate claims of copyright infringement.) However, if the main contribution of a computer program is an idea rather than the implementation of the idea it may be straightforward to develop different code that does the same thing but in a different way.

Such independent invention, which is common, especially in some areas of programming, would not infringe copyright. However, independent invention is not a defence to patent infringement. When computer programs are afforded patent protection, open source developers who independently invent a program which they then share with others, cannot be sure that they have the right to do so. Computer program patents may therefore foreclose areas of open source development.

That's typical of the intelligence that is evident in this report: Hargreaves and his team really have grasped the deeper issues at stake here.

The same is true of perhaps the report's most radical proposal:

The Government should legislate to enable licensing of orphan works. This should establish extended collective licensing for mass licensing of orphan works, and a clearance procedure for use of individual works. In both cases, a work should only be treated as an orphan if it cannot be found by search of the databases involved in the proposed Digital Copyright Exchange.

As for the latter:

In order to boost UK firms' access to transparent, contestable and global digital markets, the UK should establish a cross sectoral Digital Copyright Exchange. Government should appoint a senior figure to oversee its design and implementation by the end of 2012. A range of incentives and disincentives will be needed to encourage rights holders and others to take part. Governance should reflect the interests of participants, working to an agreed code of practice.

That's an ambitious goal, not least because of the proposed timetable, but I think it is absolutely right. The only way to cut through the current impasse regarding orphan works – a real intellectual crime against humanity – is to get in there and make things happen with bold ideas like this, rather than trying to tinker with the current approach.

There are lots of other good things in the report – too many to mention here. Given that it is, as you would expect from an ex-journalist like Hargreaves, very clearly written, I strongly urge you to read the whole thing. It's an important document that lays bare many of the key problems surrounding copyright, patents, and designs, and proposes sensible if necessarily moderate solutions to them.

The big question now becomes how many of them the UK government will actually implement, and whether it will simply file this report along with the earlier Gowers Report that proposed many of the same ideas, only to have them largely ignored.

Follow me @glynmoody on Twitter or identi.ca.

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