The Government’s Gowers review is designed to help British companies protect their intellectual property rights. But lawyers have their doubts over whether it will succeed, writes Cameron Timmis

As the UK’s manufacturing industry increasingly disappears towards the low cost base on offer in China and other foreign parts, more and more of the nation’s wealth is being driven by knowledge-based businesses – from pharmaceutical and software companies to the creative and media industries.


Intellectual property (IP) rights are an essential part of the value of these companies and, in recognition of that fact, the chancellor, Gordon Brown, announced a major review of the UK’s IP regime last December. But lawyers have their doubts as to whether this will achieve its objective.


The review is being led by Andrew Gowers, former editor of the Financial Times. It will be examining key areas of concern in IP law, from how IP rights are used and enforced to specific questions on contentious issues such as the length of copyright protection on sound recordings. Scheduled to be delivered in the autumn, the review is intended to deliver ‘targeted and practical policy recommendations’ and to provide a ‘foundation for the government’s long-term strategic vision for IP policy.’


It is generally accepted that in return for their investment in developing a product or creative work, businesses or individuals should be granted a monopoly right to make use of that product for a certain term. While accepting that the UK system has broadly struck the right balance between rights holders and consumers, the Gowers review identifies a number of concerns. The IP system, it says, is ‘highly complex’ and ‘increasingly opaque.’ It is also costly, both in terms of securing IP rights and the costs of enforcing rights through litigation – a potentially stifling innovation. Copyright law, it suggests, is ‘ill-equipped’ to deal with the new technology challenges of the digital age.


Few IP practitioners would argue that the UK’s IP regime is without flaws. Yet there is scepticism among lawyers that the Gowers review can make a significant contribution to IP reform.


The sheer scale of the review, which touches on virtually every aspect of IP law, has taken many specialist practitioners by surprise, particularly given its short timeframe. During its recent call for evidence, the review invited responses on more than 100 questions. As a result, many feel it will not have the time or resources to deliver robust recommendations.


‘Gowers has set himself a very ambitious project,’ says Duncan Curley, an IP partner at the London office of US law firm McDemott Will & Emery, ‘because it is so wide-ranging. I and a number of other practitioners are somewhat dubious as to whether there is likely to be anything of benefit.’ Rather than delivering specific policy recommendations, Mr Curley suspects the review will end up being more of a ‘stock-taking’ exercise by the Treasury.


Another concern of some practitioners is the lack of legal expertise on the review team – it is being conducted internally by a secretariat within the Treasury, although a Treasury spokesman would not confirm the backgrounds of any of the secretariat. Isabel Davies, an IP partner in the London office of US law firm Howrey who chairs the Law Society’s IP working party, says the group even offered one of its members to sit on the review. The offer was declined.


The Law Society is one of a number of legal professional bodies, which also includes the Chartered Institute of Patent Attorneys, the City of London Law Society and law firm Wedlake Bell, that provided lengthy submissions to the review during the consultation period earlier this year. ‘Everyone has put a huge amount of effort into responding; let’s hope it’s worthwhile,’ says Ms Davies.



Others share similar concerns. ‘The last time they had a review of copyright, they got a High Court judge to chair a committee,’ says Tony Ballard, an IP partner and head of the communications group at City law firm Field Fisher Waterhouse. ‘I’m sure Andrew Gowers is a jolly good journalist, but he’s not a High Court judge.’ On the other hand, Mr Ballard notes that ‘he will be adding some business acumen to the debate’. The Treasury spokesman said Mr Gowers is ‘eminently well qualified’ for the role. It looks for ‘very intelligent, capable people used to running large organisations’ to head such reviews, adding: ‘Editing the FT is no mean feat.’


A further difficulty with the review is the extent to which the UK’s IP framework is a product of international legislation. Because almost all trade mark law and much copyright and patent law is now derived from EU directives and international treaties, there is little scope for the UK to reform the IP system in isolation.


One example cited by Mr Ballard is the ‘fair use’ exceptions to copyright law. In its call for evidence, the Gowers review suggests that these exceptions ‘lack clarity and are ill-equipped’ to deal with digital technology such as the Internet. For example, many argue that the exceptions should be widened to permit copying of DVDs onto personal computers for private use, which is technically copyright infringement but widely ignored by the public. But, observes Mr Ballard, the room for manoeuvre is constrained by directives.


‘There is an Information Society Directive which was implemented a few years ago which sets the agenda for copyright in the digital domain… that illustrates the difficulties they face. The only level by which fair use exceptions can be rebalanced is at the European level. A UK review of a European question is not a whole lot of help.’


Similarly, in the patent field, the lawyers and those involved in the industry are keen to establish a European patent regime with supra-national jurisdiction. ‘I think there is a lot of progress which could be made on a community-wide patent and the European patent litigation agreement,’ says Rowan Freeland, an IP partner at City law firm Simmons & Simmons. ‘Those are areas where the [European] Commission is already consulting… I’m not sure that Gowers is necessarily the appropriate way of developing that policy further.’


Mr Freeland also expresses a widespread view among IP practitioners that the Treasury should not be leading a review of this kind: ‘I was surprised where it originated. I suppose I should welcome it, but to be effective, it needs to be driven by the department responsible for drafting international treaties – the DTI.’


Others think that the Patent Office should be leading the review: ‘It’s very unusual for the Treasury to do this because the government department charged with management of copyright is the Patent Office,’ says Mr Ballard. ‘What the Treasury is doing butting in, I’ve no idea.’


The Treasury spokesman says it has a stake in science and innovation, and points out that Mr Gowers will also report jointly to the Department of Trade and Industry and Department for Culture, Media and Sport.


While most IP lawyers agree there are flaws with the UK IP framework that need to be addressed – one example is the threats provision in copyright and trade mark law, the abolition of which the Law Society is calling for as part of the review – few consider that major surgery is required. ‘I’m not sure that many issues should be looked at as priority,’ says Bill Moodie, a partner at City law firm Herbert Smith and member of the Law Society’s IP working party. ‘Generally, the system works quite well, there’s nothing so fundamental that one should re-jig the whole system. The digital revolution has clearly introduced new issues. Whether a review of this nature is capable of solving those issues I don’t know. I think the marketplace has a way of sorting things out.’


In two areas of particular concern to Gowers – the complexity of IP rights and the costs of obtaining them, especially patents – most IP practitioners are unapologetic. ‘You are dealing with at least five sorts of intellectual property rights, which cover 150 jurisdictions. Given that and the fact that technologies are very different, it’s unsurprising it’s complex,’ says Alasdair Poore, a partner at Norwich-based Mills & Reeve and council member of the Chartered Institute of Patent Attorneys. Besides, he says, the IP regime is no more complex than many other areas of UK law, such as tax or criminal law.


Mr Poore also refutes the charge that the costs of patent protection are unduly expensive. ‘Overall, I think the cost of getting patents is pretty reasonable, given the downstream benefits… they do add up, but our view would be if you have the potential to produce something which is a meaningful innovation, then the patent costs, certainly in the UK, are probably a pretty small element of the overall costs incurred in doing it.’ He says Gowers’ estimate of £75,000 for obtaining patent protection across Europe for seven years is ‘in the right ball park’, although costs for worthwhile protection could be ‘significantly lower.’


One area where IP practitioners do seem to share common ground with the Gowers review is over the high costs of IP litigation in the UK. This is of particular concern to patent litigators because of the growing popularity among international clients of litigating patents in Germany, where costs are much lower. However, as Mr Freeland observes, what makes the UK system expensive – examination of witnesses and disclosure – is not intrinsic to the intellectual property regime, but is a function of the UK’s adversarial litigation system. That is beyond the scope even of Mr Gowers.


Cameron Timmis is a freelance journalist