Out-Law News 3 min. read

Government's IP policy-making to be scrutinised in cross-party group inquiry

The way that Government determines policies on intellectual property (IP) issues is to be reviewed by a cross-party group of MPs.

The All-Party Intellectual Property Group (APIP) said it would conduct an inquiry into the Government's role in "protecting and promoting" IP. The purpose and goal of IP policy and where and how it is developed within Government are two of the issues the Group said it intends to explore.

APIP also said it wants to find out how IP policy in the digital environment has been developed and co-ordinated, how the Government "interacts and co-ordinates" with other countries on IP policy and how "policy impacting the protection of IP is co-ordinated across departments".

"The Group has decided to look at this important issue because responsibility for development and enforcement of IP policy sits across many Government departments and agencies," an APIP statement said.

"There have been numerous reviews into IP policy in the last ten years but the decision-making framework within which policy is developed and agreed has not been sufficiently examined. The Group will seek to unpick the tangled web of cross-departmental responsibilities in this area by considering how policy has been developed, the effectiveness of the current approach, and whether the machinery of government can be improved for better policy formulation," it said.

As part of the inquiry APIP has launched a short consultation asking organisations to submit their views on what they think the objective of IP policy should be. Views are also sought on how well co-ordinated the Government's IP policy approach is across departments and what "changes to the machines of Government" could improve IP policies.

The organisations are also asked for their views on whether they think attempts to update the IP framework for the digital age have been successful, as well as how "effective" they think the Intellectual Property Office (IPO) is and what its priorities should be.

How IP and IP policy is co-ordinated and promoted internationally by the Government is another question posed in the consultation.

Respondents are also asked for their views on what they think the "impact" is of asking Government departments to protect and enforce IP when they are often not involved in formulating the policy in the first place.

The consultation closes on 30 March and APIP chair, MP John Whittingdale, said the Group intends to "reach conclusions" by May "so we can feed into developing Government thinking in this area, particularly following its Copyright Consultation".

“We want to understand how IP policy is developed and co-ordinated to see whether the current arrangements are fit for purpose," Whittingdale said.

Last month MPs discussed the Government's role in IP policy-making in a Parliamentary debate organised by SNP MP Pete Wishart.

At the time Wishart, who is vice-chair of APIP, said that creative industry bodies viewed the IPO as too influential over Government policy-making on IP.

Wishart recommended that the IPO, which is part of the Department for Business, Innovation and Skills, should instead be put under the control of the Department for Culture, Media and Sport (DCMS), where "the creative industries, the artists and the inventors" are already "managed". He also advised that a new ministerial position should be created so that one person is responsible for the "whole digital economy".

"We need one dedicated Minister of State in the Department for Culture, Media and Sport, where we could have the IPO and the artists, creators and the whole sector," Wishart said at the time.

"Putting the IPO within that Department might lead to better understanding and more sympathy for the people whom it is nominally and notionally there to serve. A Minister of State who oversees the whole digital economy could pick up issues such as intellectual property, supporting artists and major legislation such as the Digital Economy Act 2010," he said.

As a result of a lack of "effective political control", the IPO had been able to "develop its own agenda and come up with the notion that copyright and intellectual property must be constrained for the benefit of users," Wishart said.

IP law expert Iain Connor of Pinsent Masons, the law firm behind Out-Law.com, defended the IPO’s role in policy-making.

“The problem is the IPO is a Government agency and at the same time is hamstrung in what it can and cannot do,” he said. “The Government is not sufficiently focussed on what it should be doing on IP policy despite numerous reviews in recent years into the effectiveness of the IP legislative regime. The Government often turns to others in order to lead reviews of IP issues leaving the IPO on the outside of these consultations".

"The IPO cannot be expected to disengage with these reviews given that it deals with IP issues every day and so the Government should engage more fully with it. The IPO should not be criticised for getting involved in policy-making when it is arguably the best placed Government body to lead on reforming IP laws in the UK," Connor said.

A spokesperson for BIS said that the department welcomed the APIP inquiry.

"We understand that the APIPG is seeking a better understanding of how intellectual property policy is developed and co-ordinated," the spokesperson said in a statement. "We look forward to seeing what emerges from their work".

"All effective policy development, including that of intellectual property policy, is based on a strong evidence base with input from stakeholders. Ensuring a robust and effective intellectual property framework, fit for the 21st century, is an essential contribution to the Government's top priority of restoring economic prosperity through strong, sustainable and balanced economic growth," they said.

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