Gowers report puts intellectual property on the agenda
Wednesday, December 6 was a big day for news. Yes, there was the release of the report of James Baker's Iraq policy review group in Washington. And there was the Chancellor's autumn statement - is December now regarded as autumn? But by far the most important thing - for us IP lawyers at least - was the release of the Gowers Review of Intellectual Property.
Concerned about the growth in the manufacturing sectors of the economies of the far east, the Chancellor had, in his 2005 autumn statement, given Andrew Gowers carte blanche to review UK's intellectual property law, procedure and infrastructure. Gowers, formerly a journalist with the Financial Times, conducted a `call for evidence' during the earlier part of this year and his report was eagerly awaited, with December 6 seen by many as the biggest day in UK intellectual property law since the enactment of the Trade Marks Act a decade or so ago. Well, as it turns out, not so much, actually.
The first problem is that practically all of the UK's intellectual property law is governed by European Union directives intended on ensuring that the laws of all member states are harmonised, hence the registry of community trade marks is run by `the Office for Harmonisation of the Internal Market'. So it's not like Mr Gowers had free rein to start re-writing the statute books.
The second problem is that, perhaps unsurprisingly for someone trained not in intellectual property but in journalism, many of the recommendations seem slightly superficial, such as the call for the Patent Office to be renamed the UK Intellectual Property Office, which seems about as important as renaming the Office of the Deputy Prime Minister as the Deputy Prime Minister's Office. There are some recommendations that catch the eye, such as the recommendation that `format shifting' be legalised officially. There was also a recommendation that the parody becomes a permitted act, this having been one of the optional exceptions to copyright provided in the Copyright Directive a few years ago but which the UK chose not to adopt.
Since the courts are very conscious of intellectual property rights being used for censorship, perhaps little would change. Call me cynical, but these do seem to be initiatives intended to capture headlines as opposed to making any real difference. The report talks about the cost of pursuing intellectual property infringements in the UK but does not refer to the strides being made by the Patents County Court in this regard. Small businesses are particularly affected by the deterrence of investing in the protection of their rights when apparently to do so means risking a substantial amount of costs being irrecoverable even in the event of a victory against a well-heeled opponent.
Fast track trade mark registration procedures for small businesses are recommended, but meaningful changes to litigation practice are not detailed. This is definitely an opportunity missed, especially as the main reason that small businesses do not enforce their rights is that they feel that they won't be able to recover the costs of doing so.
But the Gowers Review has definitely achieved one useful thing. Powerful people in Westminster now have IP on their agenda. That has to be a good thing for business. And for IP lawyers.
Matthew Rippon is an assistant solicitor in the IP & Technology Team at Watson Burton LLP. Ring (0191) 244-4382 or see email@example.com