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Will the UK take its Digital Opportunity?

Wednesday, May 18th, 2011

The final report of the Hargreaves Commission is now available. The commission was appointed by the Cameron government.

The Commission appeared unable to directly recommend that the UK adopt fair use provisions of the kind already found in the law of the United States and the Philippines, and more recently Israel and Chile because the UK is bound by an EU directive which limits copyright exceptions to a narrow set. Because of the constraints imposed by the EU the Commission suggests that the UK engage in a long term process to create a flexible provision in EU copyright law that will enable new uses. It also recommends that within the constraints of EU directive the UK should introduce exceptions for research, format shifting, digitisation by libraries, and parody. The Commission also recommends that licensing terms should not be allowed to trump legislative exceptions.

The report recommends that the UK should not follow the European Patent Office in ignoring the empirical evidence about software patents. The UK should therefore continue to refuse to grant patents over software that does not have a technical effect.

The Report is entitled “Digital Opportunity”. The question is whether the UK government will take that opportunity. As the Hargreaves Report itself points out some of the recommendations were made five years ago by the Gouwers Review of Copyright but they were never implemented. Instead the Labour party government ignored it and passed controversial legislation demanded by multinational record companies.

Just because good sense is available for governments doesn’t mean that they follow it.

More than 70 Law Professors Call on President Obama to halt ACTA

Friday, October 29th, 2010

More than 70 US law professors have written to President Obama
warning him of legal flaws in the ACTA process.

They warn:

“Now that a near-final version of the ACTA text has been released, it is clear that ACTA would usurp congressional authority over intellectual property policy in a number of ways. Some of ACTA’s provisions fail to explicitly incorporate current congressional policy, particularly in the areas of damages and injunctions. Other sections lock in substantive law that may not be well-adapted to the present context, much less the future.And in other areas, the agreement may complicate legislative efforts to solve widely recognized policy dilemmas, including in the area of orphan works, patent reform, secondary copyright liability and the creation of incentives for innovation in areas where the patent system may not be adequate.The agreement is also likely to affect courts’ interpretation of U.S. law.

The use of a sole executive agreement for ACTA appears unconstitutional.”

They also warn that

“The treaty is named the “Anti-Counterfeiting Trade Agreement”. But it has little to do with counterfeiting or controlling the international trade in counterfeit goods. Rather, this agreement would enact much more encompassing changes in the international rules governing trade in a wide variety of knowledge goods – whether they are counterfeit or not – and would establish new intellectual property rules and norms without systematic inquiry into effects of such development on economic and technical innovation in the U.S. or abroad.”

They recommend that the President should halt the process to ensure proper public consultation including:

“Hold a meaningful open, on-the-record public hearing on the draft text, the results of which will be used to determine what proposed changes to the agreement the administration will propose; “

and

“Renounce its position that the agreement is a “sole executive agreement” that can tie Congressional authority to amend intellectual property laws without congressional approval and instead pledge to seek congressional approval of the final text.”

For observers from the developing world this is a hopeful development but it may be ignored.

If its ignored that will be the clearest possible indication to every person concerned with development, not only that a small clique of corporations with defunct business models are willing to see millions die and millions more live in poverty to prop up their business models, but also that those same corporations can write whatever laws they please.