Conclusions and recommendations
Importance of intellectual property to the UK
economy
1. Given
the value of the creative industries and the importance of intellectual
property to the UK, we welcome the setting up of the Strategic
Advisory Board for Intellectual Property and of an economics and
evaluation unit within the Intellectual Property Office. (Paragraph
12)
Is the Copyright Tribunal restraining the rightsholders'
monopoly?
2.
The 2007 IPO Review of the Copyright Tribunal recommended that
collecting societies as well as users have the right to make reference.
We support this recommendation. In addition, we recommend that
the Government implement this recommendation ahead of the others
in the 2007 IPO Review. (Paragraph 21)
Complaints about the operation of the Copyright
Tribunal
3. We
are concerned that complaints about delays and costs at the Copyright
Tribunal going back 20 years were not resolved by the Patent Office.
We hold it (now operating as the Intellectual Property Office)
responsible for this unacceptable failure. (Paragraph 25)
Intellectual Property Office Review of the Copyright
Tribunal
4. To
assist all those with an interest in the operation of the Copyright
Tribunal, we recommend that the Intellectual Property Office set
out how it expects the Copyright Tribunal to function, in particular
whether it is expected to function as an adversarial, commercial
court. (Paragraph 28)
5. We recommend that
the rules under which the Copyright Tribunal operates be reviewed.
(Paragraph 31)
6. We recommend that
the post of Chairman of the Copyright Tribunal be a salaried post.
(Paragraph 32)
7. We find it hard
to understand why no action was taken on the Monopolies and Mergers
Commission's 1988 recommendation that the lay members of the Copyright
Tribunal be chosen on the basis of specific expertise. (Paragraph
36)
8. We recommend that
lay members continue to be appointed to the Copyright Tribunal,
but that future appointments be open, transparent and based on
expertise that is relevant to the work of the Copyright Tribunal.
(Paragraph 37)
9. We conclude that
the administrative support and resources that the Intellectual
Property Office currently provides to the Copyright Tribunal are
wholly inadequate. We recommend that level of support and resources
be reviewed as a matter of urgency. (Paragraph 40)
10. We share the concerns
of those who have argued that placing a requirement on users to
produce their own actuarial calculations and sampling figure risks
adding to the burdens on users and also that it may add to the
complexity to the proceedings in the Copyright Tribunal. We recommend
that the IPO reconsider whether it is reasonable to impose such
a requirement on users. (Paragraph 43)
11. We conclude that
the 2007 IPO Review's recommendation that the Copyright Tribunal
become active in formulating methodologies is problematic. The
2007 IPO Review failed to spell out what this work would entail,
the degree of expertise and resources required or to consider
whether such work would prejudice the Copyright Tribunal. We do
not deny that the assistance proposed by the 2007 IPO Review may
be valuable and we therefore recommend that the Intellectual Property
Office consider an alternative to the Copyright Tribunal to provide
the assistance. (Paragraph 46)
Case Management
12.
While we expect that the streamlining and case management procedures
that the 2007 IPO Review has recommended will achieve some improvement
in the throughput of adjudications by the Copyright Tribunal,
we recommend that the Intellectual Property Office and the Government
examine other measures to increase the capacity of the Copyright
Tribunal to handle a greater volume of references. (Paragraph
48)
13. We conclude that,
while the 2007 IPO Review's recommendation that there should be
a single, joint expert witness is superficially attractive, it
may not work in practice. We invite the Intellectual Property
Office in responding to this Report to explain how it will work.
(Paragraph 50)
Departmental responsibility for the Copyright
Tribunal
14.
We recommend that responsibility for the Copyright Tribunal remain
with the Intellectual Property Office. (Paragraph 54)
Access for small businesses, institutions and
individuals
15. We
conclude that the current arrangements unfairly exclude individuals
and small businesses and institutions. We recommend the Government
rectify this serious deficiency when it responds to the 2007 IPO
Review of the Copyright Tribunal. Failure to provide access for
individuals and small businesses and institutions casts doubt
over the fairness of the operation of the licensing societies'
monopoly. (Paragraph 58)
Arrangements to provide access
16. We
recommend that the Intellectual Property Office evaluate the options
to provide access for small business and institutions and individuals
that we describe in paragraphs 60 to 64 of our Report. We conclude
that one of the tests against which any changes will be measured
is whether the individual or the small business or institution
can challenge and change charges for using copyright-protected
material without costly litigation but also without incurring
major consequences for people not a party to a particular action.
(Paragraph 66)
Orphan works
17. We
recommend that in its response to this Report the Intellectual
Property Office set out its policy on the treatment of orphan
works and that, in particular, it explain whether it supports
licensing of or exemptions for orphan works. We further recommend
that, to give certainty to those to whom orphan works have caused
difficulties, the Intellectual Property Office consider an interim
solution based on the exception approach, pending the outcome
of the EU's deliberations. (Paragraph 71)
Conclusions
18. We
are surprised that a tribunal headed by a judge, who does the
work unpaid and in his spare time, assisted by a barrister paid
£316 a day and two lay assessors with no relevant technical
expertise, functions to the level that it does. Changes to the
operation of the Copyright Tribunal should have been made in the
1980s and it is to no one's credit that nothing has been done
for 20 years, particularly the Patent Office/ Intellectual Property
Office. We have now reached the point where reform is long overdue
and needs to be made expeditiously to meet the challenge of digital
technology. We have high expectations of the Intellectual Property
Office to implement a programme of major changes in the operation
of the Copyright Tribunal. (Paragraph 72)
19. The 2007 IPO Review
of the Copyright Tribunal set out a list of changes, most of which
have support from both users and rightsholders. The recommendations
in the Review that give us most concern are those that add to
the Copyright Tribunal's workload or could be perceived to compromise
its impartiality. These need to be re-examined. The Government
now not only needs to publish its response to the Review but also
to set out clearly how it expects the system to operate, the volume
of cases it expects the Copyright Tribunal to handle and the average
time that a dissatisfied user or rightsholder can expect a case
to take. It also needs to develop as a matter of urgency an affordable,
alternative service that individuals and small businesses and
institutions can use as well as a policy on orphan works. Given
the increasing importance of intellectual property in the economy
and the new challenges stacking up in this area, it is essential
that serious attention be now paid to this rather neglected area
of policy. (Paragraph 73)
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