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FREE ACCESS: Has Hargreaves neglected rights owners?

The UK government must not lose sight of the need to effectively enforce IP, rights owners and lawyers said today

The government response to the Hargreaves Review proposes major changes such as introducing copyright exceptions, a Digital Copyright Exchange and legislation on orphan works.

It also addresses enforcement and international priorities, but the initiatives here are less eye-catching.

"From our point of view we think this is missing a big chunk of the story," said Susie Winter, executive director of the Alliance Against IP Theft, which represents rights owners in various IP industries.

"There is a need for a fair, proportionate and effective enforcement regime to protect rights. People invest to get a return and need to protect their IP."

Some lawyers are concerned that the emphasis on legalising activity such as format shifting detracts from the need to deal effectively with large-scale file sharing.

"We have a whole generation that does not pay for content," said Adam Morallee, a partner of Mishcon de Reya. "We need proper punishments and a proper enforcement regime."

Morallee added that existing compensation, which is limited to a reasonable royalty, is insufficient, as it means there is no incentive not to copy. "The position will only get worse. We're years behind the file-sharers," he said.

Meanwhile, designers are concerned about a consultation on reducing the length of term for unregistered designs from 10 years to three years.

One of the main planks of the reform package is to broaden copyright exceptions, and legislation to achieve this is expected to be introduced within the next few months. But Winter said these proposals were "not properly thought-through" and attempted "to impose a one-size-fits-all approach across all industries".

While certain exceptions may work for the music industry, she said, other industries have different business models.

The result would not necessarily be clarity, she added: "You could end up confusing consumers."

"If consumers really are confused, then more research needs to be done. We don't believe broadening out exceptions is the best way to do that."

Instead, she emphasised the need for transparency, education and licensing models: "Licensing is addressing a lot of these problems."

The government proposes encouraging copyright licensing by establishing the Digital Copyright Exchange (DCE).

Winter said: "All parts of industry are happy to explore the DCE, but the devil is in the detail. It is right to conduct a detailed feasibility study."

The government's plan is that the DCE would be both a directory and an exchange, functioning like the marketplace.

But Winter said copyright licensing "is not necessarily a fixed-price game": "It's not just about what use it's for but who you're licensing to … often you still need a personal connection between a licensor and licensee."

Business minister Vince Cable said today that a "champion" would be appointed to plan the DCE, and practitioners said it should be someone who understands the commercial aspects of licensing.

Despite the criticisms, practitioners welcomed the government's focus on IP. Winter said: "You can't deny this is an effort by the government to join up the different strands of development of IP policy that has been going on. That has got to be useful."

The response to Hargreaves was published on the same day as the UK's International Strategy for IP, and the UK IP Crime Survey 2011. It also coincided with the release of details about how the copyright-infringement aspects of the Digital Economy Act will be implemented.

Vanessa Marsland, a partner of Clifford Chance, told Managing IP: "The overall package presents a fairly full strategy for IP. There is a level of sophistication in the way the points are considered and so far as I can see they have taken account of a number of rights holders' voices."

But she warned that the government has set a "fairly aggressive timetable" and would need to make sure everyone is engaged before putting forward concrete proposals.

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