Gowers Review focuses on enforcement, costs and flexibility

The review by Andrew Gowers, former editor of the Financial Times, of all aspects of the UK IP framework was published on December 6. The review focused, in particular, on whether the system was fit for purpose in an era of globalization and digitization. It concludes that although the system is not in need of radical overhaul, there is scope for reform to serve better the interests of consumers and industry. However, few recommendations concern trademarks specifically.

The UK Treasury asked Gowers to examine all elements of the IP system, including the instruments (patents, copyright, trademarks and design rights) and the operations (how intellectual property is awarded, how it is licensed in the market and how it is enforced). Its specific terms of reference were to consider:

• the way in which the government administers the awarding of IP rights and its support to consumers and businesses;
  
  
• how well businesses are able to negotiate the complexity and expense of the copyright and patent system, including copyright and patent licensing arrangements, litigation and enforcement; and
  
  
• whether the current technological and legal IP infringement framework reflects the digital environment, and whether provisions for 'fair use' by citizens are reasonable.

The review's recommendations are concentrated in three areas:

• strengthening enforcement of IP rights;
  
  
• reducing costs of registering and litigating IP rights for businesses; and
  
  
• improving the balance and flexibility of IP rights.

Its key recommendations include that:

• Trading Standards should be given the power and duty to enforce copyright infringement;
  
  
• penalties for online copyright infringement should be increased to a maximum of 10 years' imprisonment, to bring them in line with penalties for 'physical' infringement;
  
  
• a consultation takes place to ensure that an effective and dissuasive system of damages exists for civil IP cases to provide an effective deterrent to IP infringement;
  
  
• provision of IP information to business should be improved;
  
  
• a fast-track scheme for registration of trademarks should be introduced;
  
  
• a consultation takes place to enable fast-track litigation be used in IP cases;
  
  
• the establishment of a European Community Patent and the European Patent Litigation Agreement should be supported;
  
  
• an 'orphan works' provision should be proposed to the European Commission to make it easier to use copyright protected material for which no author can be found;
  
  
• a limited private copying exception to copyright should be introduced to permit consumers to format shift legitimately purchased material (eg, copying music from a CD to an MP3 player or iPod); and
  
  
• the research exemption for patent infringement should be clarified.

Chancellor of the Exchequer Gordon Brown said in his pre-budget report that the government supported the measures on IP enforcement recommended in the Gowers Review. In particular, he said that the government will:

• tighten penalties for copying and piracy;
  
  
• give individuals new rights for personal use; and
  
  
• introduce a new fast-track scheme to help small companies to protect their trademarks.

Joel Smith and Peter Bell, Herbert Smith LLP, London