Happy birthday Gowers – but where are our reforms?

A year ago today, the Gowers Review was released to the public. The Government accepted all of the 54 recommendations it made, and experts welcomed the balanced approach it took to intellectual property law in the digital age, since it matched greater flexibility with tougher measures on enforcement (although at the time, we flagged its failure to distinguish between large-scale commercial counterfeiting, and small-scale non-commercial acts carried out by individuals, now a live issue with current IPRED 2 negotiations). But one year on, things don’t look quite so rosy.

I interviewed Andrew Gowers a few hours after the release of the Review. He said that enforcement and flexibility were “two sides of the same coin”. The Review states:

“Copyright in the UK presently suffers from a marked lack of public legitimacy. It is perceived to be overly restrictive, with little guilt or sanction associated with infringement.”

Gowers’s suite of recommendations attempted to redress this situation by re-instating the balance in copyright law. So how has Government performed in implementing Gowers’s recommendations?

In April this year, changes to the Copyright, Designs and Patents Act came into force that allowed Trading Standards to enter premises and seize goods and documents they believe to be involved in copyright infringement. These changes were backed by £5m in new funding for Trading Standards. There is little question that this contributed to the arrests of webmasters at TV-links and Oink later in the year.

In May, the UK Intellectual Property Office (UK IPO) quietly delayed its consultations on changes to the law that would allow a private copying exception, an exception for researchers, for libraries and educators, and for those creating works of parody or pastiche out of copyrighted works.

In November, at an event hosted by the Social Market Foundation, the recording industry revealed plans to cooperate with ISPs and launch a “3 steps and you’re terminated” regime that would cut off the internet connections associated with people believed to be sharing copyrighted works unlawfully. This industry cooperation is recommendation 39 of the Gowers Review, and it looks to be on schedule.

A call to the UK IPO yesterday confirmed that consultations on the exceptions to copyright law have been further delayed, and will now not be seen until the New Year. These are consultations, the first baby step in implementation, and it’s unlikely that any actual legal amendments will be seen until 2009 at the earliest.

What’s more, when the Open Rights Group met with culture minister Margaret Hodge and senior officers from DCMS and the UK IPO in October, it was revealed that actions to implement recommendation 11, that copyright should be amended at the European level to create an exception for transformative works, had not even been timetabled.

If enforcement and flexibility are two sides of the same coin, then one year on it looks like the toss has definitely gone to enforcement. This means that Government is in effect making the situation worse: concentrating on strengthening enforcement measures while failing to address the inherent inflexibility of copyright law that Gowers identified as a key factor in the general public’s disrespect for the law.

It’s up to all of us who submitted evidence to Gowers in 2006 to keep the pressure up on Government to make good on their promise to reform copyright for the digital age.