UK: UK Government Responds To The Hargreaves Review

Last Updated: 10 August 2011
Article by Sarah Byrt and Jonathan Radcliffe

Originally published August 10, 2011

Keywords: UK Government, Hargreaves Review, effective lobbying, IPO, digital copyright exchange, DCE

The Government has released its response to the Hargreaves Review (an analysis of our current IP regime commissioned by the Government, discussed in our earlier client alert Fit for the internet age? The Hargreaves Review of Intellectual Property and Growth). The Government "broadly" extends its support to the conclusions and recommendations contained in the Hargreaves Review. Although the Response does not contain details of the legislative agenda that will flow from the Hargreaves Review (which is set to be included in a White Paper due to be released in spring 2012 following further consultation with stakeholders), it does provide clear signals as to what changes the Government will endeavour to make. These are discussed below.

Evidence versus lobbying

The Government shares Professor Hargreaves' concerns that evidence generated by business is often biased and it states that there is "a total lack of high quality evidence on some issues and an over abundance of effective lobbying". Going forward, the Government wants "open and transparent" evidence to be at the heart of policy-making. Therefore, according to the Response, the Government has already strengthened the economics team (the team in charge of research) of the UK Intellectual Property Office (IPO) and, later this summer, the IPO will set out a research programme and issue guidance on what will constitute "open and transparent" evidence. The Government says that "the fundamental issue ... is that key data is held by business and other organisations. IPO will work with those organisations to help them to offer good quality evidence; our challenge to them is to do so." Let's hope that the Government will see that there is value in evidence generated by business (especially if it satisfies the IPO's new "open and transparent" criteria) rather than "shut out" important stakeholders whilst placing the burden of evidence generation on not-for-profits and similar organisations.

International priorities

The Response directs readers to The UK's International Strategy for Intellectual Property for information about the Government's proposals on supranational intellectual property policy. However, it does suggest the Government will focus on monitoring eastern economies such as China and India, and that it strongly supports the establishment of a European Patent Court and a unitary patent for the whole of the EU.

Copyright licensing

Digital Copyright Exchange (DCE). The Government is keen to "push ahead" with plans to establish a DCE. It wants to see a DCE, or something like it, that "enables a functioning digital market in rights clearance and acts as a source of information about rights ownership" and to "serve as a genuine marketplace independent of sellers and purchasers". This sounds like a combined copyright register and online catalogue for copyright material. The Government will aim to make the DCE "commercially attractive" to rights owners rather than make participation compulsory (which is prohibited by the Berne Convention, the international treaty that has helped harmonise copyright laws across the globe). However, making the DCE commercially attractive may be very difficult in practice given that major rights owners are unlikely to want to line up their intellectual property for the world to see and financial incentives are unlikely to sway them unless significant. The Government also suggests that rights owners will be allowed to set prices (subject to controls on unfair competition) but does not say whether different owners will be able to use different terms for licensing the use of their material. An ambitious timetable for the DCE initiative aims at implementation for the end of 2012. However, ministerial support for DCE seemed weak at a debate in the House of Commons last month (discussed in our client alert UK MPs discuss the Hargreaves Review) so achieving this goal may be challenging.

Cross-border licensing framework. The Government supports the European Commission's proposal for a cross-border licensing framework and will report on progress early next year.

Copyright collection agencies. The Government is sympathetic to concerns about copyright collection agencies. It recognises their value but wants to make them "more robust" as part of the UK's journey to becoming "a leader in European licensing". It wants to achieve this by requiring them to implement codes of conduct that adhere to minimum standards set by the Government and by introducing a "backstop power" that allows a statutory code to be put in place for collecting societies that fail to implement or adhere to a voluntary one.

Orphan works

The Government describes the UK's current treatment of orphan works as "a very real economic issue" and says that "potentially valuable intangible assets are simply going to waste". (At the moment, works protected by copyright cannot be used without the rights owners' consent, however hard it is to track the owner down). So the Government plans to bring forward proposals for an orphan works scheme to this autumn and to extend collective licensing to other sectors that choose to adopt it.

Copyright law exceptions

The Government agrees with Professor Hargreaves that "copyright currently over-regulates to the detriment of the UK". So it plans to substantially open up the UK's copyright exceptions regime, including a wide non-commercial research exemption covering text and data mining, limited private copying exemption, parody and library archiving. Some of these exceptions are more controversial than others. A private use exception (i.e., allowing people to copy material or change its format for private, non-commercial use) is widely viewed as acceptable, probably given that US copyright law already has a similar exception, whereas a parody exception is a concern for rights owners such as record labels.

All of the proposed exceptions should successfully remove obstacles to growth that exist in our copyright regime. For the instance the text and data mining exemption will facilitate new discoveries by scientific researchers by giving them more freedom to analyse published journals and the private use exception could open the door to online services such as the Google and Amazon cloud-lockers (which allow users to offload their digital music collections to the internet for access from any device). However, given that extending exceptions in copyright law was a feature of the Gowers Report (a similar report to the Hargreaves Review commissioned by the last Government in 2005), and that yet more consultation is planned, one wonders how quickly these proposals will reach the statute book.

Patents and innovation

The Government echoes the Hargreaves Review in relation to patents. It says that patents in some technologies are anti-competitive and hence anti-innovation and so is unlikely to extend patents to sectors from which they are currently excluded (including software) unless there is clear evidence of a benefit to innovation and growth. A number of stakeholders have voiced concerns that this makes the UK "unattractive", given that other jurisdictions extend patent protection to a broader range of technologies (including software). The Response states that the IPO will continue to set challenging targets for the reduction of its patent backlogs and that, by November 2011, it will publish findings following an analysis of the current scale and prevalence of patent thickets (the protective practice of filing for a number of overlapping patents) including whether they present a particular problem to SMEs seeking to enter technology sectors.

Design and design rights

The Government has accepted Hargreaves' challenge to look more closely at the UK's design right regime to check that it is adequate for the needs of businesses. The IPO will publish research on relative levels of design registration in the UK and impact on UK competitors this summer and then it will go on to consider whether further research is needed. By the end of this year, the IPO will publish its assessment of the case for simplification of the design right system and whether there is need for a UK registered design right alongside the corresponding EU right.

It will also consider whether to include design rights in the Digital Copyright Exchange without an initial examination of the application. The fact that UK registered designs can be obtained without prior examination by the IPO means that the Government could inadvertently allow organisations to market and charge for the use of material which in reality is not protected by any IP rights.

Learn more about our Intellectual Property practice.

Visit us at

Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2011. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.