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Government has a positive attitude to growth in updating IP regulations but a delicate balance of rights still remains

by david.nunes

4th August 2011

Government has a positive attitude to growth in updating IP regulations but a delicate balance of rights still remains

Julian Heathcote Hobbins, General Counsel at the Federation Against Software Theft (FAST) has commented on the government’s response to the Hargreaves Review of Intellectual Property:

“The government clearly understands the importance of intellectual property to the growth of the UK economy and our position globally as a creative and innovative hub.

“FAST has been consistent in stating that the priority needs to be on enforcement of IP laws and enabling both civil and criminal law to deter infringers and criminals by protecting the rights holder. Without this, future investment will not be so forthcoming and the UK’s position as a global leader in innovation will be challenged. Only yesterday I was dealing with a potential counterfeiting matter. The member is a micro software business and it impressed upon me that if they are not confident in securing the return on investment made in a product where the development time can be years, the commercial risks are simply not worth taking. When Government talks of ‘evidence’, this is it.”

The decision not to bring forward streamlined site-blocking sanctions to be enforced by Internet Service Providers is a damaging limitation on the arsenal available to tackle piracy. A variety of tools are needed for effective enforcement and this is a worrying retrograde step.

The pirates just re position these sites utilising the internet’s global structure in a game of cat and mouse.

Robin Fry, Partner at the law firm, Beachcroft LLP, stated:  “However, the recent NEWZBIN2 case makes it clear that software vendors will still be able to get direct orders against ISPs to block access to file-sharing websites. Such action is likely to be predictable and cost-effective but only after a number of successful applications have been brought where rights holders become familiar with the system”.

Cost is such a significant factor in small and micro-sized organisations when deciding to press their cases – having their options reduced in this way only weakens their position.

Julian continued: “We ask the UK government to implement Directive 2004/48/EC of the European Parliament and of the Council on the Enforcement of Intellectual Property Rights in relation to Article 4. The article makes provision in civil law for FAST to have the right to take legal action, with checks and balances, to protect its members in its own name.

“There is obvious groundswell of opinion favouring the need to update our IP and copyright laws to reflect the developments in technology but we would remind readers that as far as software is concerned, we have the Software Directive from 1991.

“For example, much has been made about the decision to allow lawful owners to make private copies of their music and DVDs. The Software Directive has enshrined a back up right for some 20 years.

“However, this right to make back-up copies is not to be extended to a ‘general right to copy’. We do wonder whether the less scrupulous will stretch the meaning of a legal right to format shift, as we have in the past seen sellers on internet platforms offering for sale unlawfully, back up copies of software. The pirate is ever ingenuous.  It is not easy or cheap to secure justice against those committing piracy or those involved in counterfeiting.  A decent and low value IP claim option is to be welcomed.

We have also welcomed the principle of a Digital Copyright Exchange but do not see how this could apply to software. However, this is a complex policy area and the exchange in the United States has not operated with plain sailing – significantly, where Hargreaves looked for his inspiration. The government has recognised this complexity and it is heartening that they have underlined the importance of bringing together industry partners to guide its development. We do welcome that the government has stated that any exchange would be voluntary in terms of participation.

“In conclusion, the power of innovation in the UK often comes from small and micro-sized organisations and this is particularly the case in the software industry. What is particularly important for our sector are robust copyright laws which maintain the ability of the rights holder to monetise their ideas as patenting is often seen as a time consuming and expensive headache.”



About The Federation Against Software Theft

The Federation Against Software Theft (FAST) was formed in 1984. FAST is a not-for-profit organisation limited by guarantee and wholly owned by its members. It was the first organisation to protect software publishers’ rights and advances its mission through education, enforcement and policy initiatives, together with promoting standards and best practice in the professional management of software. FAST advocates IP for growth. www.fast.org.uk



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