The Gower’s Review on intellectual property

January 2007

All areas

Link to the Gower’s Review Report on Intellectual Property which was published on the 6th December on the HMT website .

Statement by the IFPI’s Chairman John Kennedy in response to the leaked news that Gower’s says “don’t extend the term”

“If the Gowers Review has indeed decided not to recommend the equalisation of the Copyright Term then that is a big disappointment but not a complete surprise to the music industry.  There have been rumours for a time – founded or unfounded – that Mr Gowers did not think it appropriate. However, this report is only a recommendation, and it is the government which will make the final decision. At the end of the day, it will be an interesting test of how future Labour governments will conduct business. The UK music industry has thrived over the years, producing great talent, paying taxes, generating employment and maximising overseas revenues. The music industry is facing tremendous challenges but even now the UK music industry punches above its weight on the international stage.

I have often asked on behalf of the UK music industry shouldn’t we have a government that each day when it comes to work, asks itself ‘What can we do for industry?’ Copyright equalisation is one of the few things the music industry has seriously asked the government for over the years. Now the Treasury has to decide whether or not it wants to support one of its successful industries. If the UK government decides not to support copyright equalisation then the music industry will have to continue its campaign in Europe. There the signs are encouraging but there is no doubt that there will be raised eyebrows and the question will be asked ‘Why should Europe help the music industry when the government of the most important music market in Europe and the government of EMI has decided not to?’ UK and European governments give speech after speech talking of the importance of the knowledge economy. A decision not to equalise the Copyright Term would confirm that there is no real belief in these words. We have let our manufacturing industry slip away. Will we now show the same lack of support for our creative industries?” and see

And see the article Extending the Term on this website (Articles)

For general comment on the Gower’s Review see:

And the ever informative out-law site from Pinsent Mason at:

And see (CMS Cameron McKenna)


The artists view? See:



See also Brown promises an extra £5 million to fight piracy,,1966206,00.html


Some quick snippets from the wonderful IPKat blog (


* Confirming the heavy leak of recent weeks, there is no proposal to extend the term of copyright protection for sound recordings from its existing term of 50 years [IPKat comment: an initiative to extend term would be unlikely to carry weight in the European Union unless someone could persuade the Commission that it was their own idea, driven by (i) the purest of economic justifications or (ii) the need to beef up IP protection in the fight against piracy].

* Private copying should be permitted [IPKat comment: this looks a bit like a blanket defence rather than a specific one that fulfils the three-fold Berne Convention test – does this mean that if you can’t realistically stop it, you should legalise it? If so, what about cannabis, parking on yellow lines and exceeding the speed limit?].

* Directive 2001/29 on copyright in the information society should be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test [IPKat comment: let’s hope so. Some of us have been relying on this exception for years …].

* Introduction of a defence of parody or pastiche by 2008 [IPKat comment: long overdue! Spain and some other countries have long taken a robust view of such works. Is their sense of humour better than ours?].

* Provision should be made for orphan works, i.e. those whose authors and/or copyright owners have become untraceable [IPKat comment: this is already the subject of very serious and constructive debate in the US. Simply taking a chance and using a work in the hope you won’t be sued isn’t enough].

Trade marks

* Fast-track trade marks for small businesses [IPKat comment: is this likely to make a real difference? You can trade surprisingly well even without a trade mark – and cloggingly slow oppositions from both small and big businesses are inevitable. Merpel says, but a registered mark offers some protection against an infringement action and is also something you can mortgage


The excellent CMU Daily had this to say:

As expected, former Financial Times editor Andrew Gowers yesterday formally recommended to the government that the recording copyright here in our United Kingdom (and, by association, across Europe, this is all tied to our intellectual property commitments to the European Union) should remain at 50 years, and should not be extended to 95 years to bring it in line with
the US, as the record companies had been campaigning for. Gower recommends that “the European Commission does not change the status quo and retains the 50 year term of copyright protection for sound recordings and related performers’ rights”.

Gowers reached the conclusion in his much previously reported government commissioned review of the UK’s intellectual property laws. Of course government ministers are not obligated to follow all (or any) of Gowers’ recommendations, so a proactive and public lobbying campaign by the music industry, already launched last week when rumours of Gowers’ conclusions first circulated, continued yesterday with key industry organizations calling on politicians to extend the recorded copyright anyway. Of course, even if they do go with Gowers’ recommendations (which early indications suggest they will), the industry will continue to lobby for the extension at
both a UK and European level, but record companies had hoped to secure the extension in the latest IP law review because the fifty year copyright is about to expire on a raft of lucrative UK rock n roll recordings.

Elsewhere in his report, Gower also recommended that new copyright laws should allow consumers the ‘private copying rights’ enjoyed by consumers in many other countries, which allow people to legally make copies of music they have bought for personal use (eg transferring music from CD to MP3 player, or making a second CD copy for use in the car). Such rights would be “strictly limited”, but would remove a copyright restriction which has been criticised by many as a foolish law given that nearly every consumer disobeys it and no copyright owners would ever try to enforce it. The BPI itself has admitted that record labels would never try to protect their
right to stop consumers making limited private copies, though some in the industry advocate a system whereby labels licence purchasers of music the right to make private copies, rather than the actual change in the law that Gowers is proposing. Others in the industry will also be disappointed that Gowers does not suggest a private copying levy system like that which
operates in some other countries where private copying rights exist, a levy that is charged on devices used for making private copies – tapes, CDRs and, sometimes, MP3 players – which is then passed back to the music community.

Where the record labels will agree with Gowers, however, is in his tough talking regarding piracy, and especially online piracy. The report says that piracy and counterfeiting are probably the biggest challenge facing the “intellectual property system”, estimating that 20% of the entertainments industry’s potential turnover was lost to illegal copying. It also suggests
that online piracy should be taken as seriously as that involving physical product and therefore piracy penalities for people who sell pirated versions of music and film over the net should be on par with those for people who sell bootleg CDs and DVDs. Currently the maximum sentence in the UK for the former is two years, while for the latter it is ten. Gowers also suggests that Trading Standards Officers who currently only deal with physical piracy should also have a remit to investigate online pirates.

While it will take some time for the government to now assess Gowers’ recommendations and to translate them into legislation proposals for parliament, that Gordon Brown chap, who commissioned the report, said in his budget statement yesterday that he would immediately back a greater role for Trading Standards Officers in the fight against content piracy, pledging an
extra £5 million in government money to fund extra work in the area.


The BPI’s response to the Gower’s Review was this:

“The BPI believes that extending the copyright term from 50 to 95 years would have sent an
unequivocal sign to the international community that the UK values copyright and end the competitive disadvantage that British record companies face in comparison with their US counterparts. Copyright extension would also benefit lesser known artists who have helped establish the British music industry as one of the most creative and dynamic in the world, and also enable the British consumer to benefit from continued investment in new music and artists.  Nevertheless, the BPI is pleased that Gowers has recognised the importance of the British music industry by choosing to recommend stronger enforcement measures against illegal downloads of music”. BPI boss Peter Jamieson added: “Overall we are encouraged by Mr Gowers’
support for raising the profile and enforcement of intellectual property and we look forward to working closely with the government on this. Stealing music is effectively stealing the future of British musicians and the people who invest in them”.

On the extension issue he added: “We will continue to make the case to the UK government for term extension. As Mr Gowers says, the decision on extension is ultimately for the European Commission and we will be putting our case vigorously when it reviews the relevant directive next year. Gowers commissioned Cambridge economic research to argue the case against term
extension; but this analysis completely fails to address the central argument of discrimination against sound recording copyright inherent in the current system.”


AIM (the Association of Independent Music, representing independent UK record labels ) made this response:

AIM notes the recommendations set out in theGowers Intellectual Property Review published today, and regards them as a noteworthy contribution to the continuing debate about the role and future of the creative industries in Great Britain. Copyright is, and will remain, vitally important to those who rely on it for their living. It is equally important to the Government.

However, AIM and its members are very disappointed by the two key recommendations relating to issues vital to the UK music industry, and can only reject these firmly.

On creating an exception in copyright law for Private Copying :

This recognises, and appears to deal with, the realities of private copying – a universally assumed right, irrespective of the industry’s (some would say) aggressive stance against individuals identified to be serious uploaders of copyrighted music. But, whilst appearing to satisfy AIM’s urge to be pragmatic, such an exception applied without any reciprocal benefit to the creator and copyright owner is taking pragmatism to the point of capitulation, and falls drastically short of creating the progressive copyright framework needed in the digital age. By tidying up a small part of the copyright law, we believe Gowers may well be opening the floodgates to uncontrolled and unstoppable private copying and sharing from person to person, as well as format to format. Once owned, however acquired, music will be passed on freely.

It ignores the principle of granting a concession to an exclusive right in return for some kind of remuneration – a principle long served in much of Europe by levies on blank recording hardware and software. The fact that these levies, across the board, may be judged to be working imperfectly and arguably may require some reform, rationalisation (possibly even replacement by some system which fulfils the objective more efficiently or imaginatively) does not detract from the essential justice of their existence. Therefore an unremunerated exception for Private Copying will exacerbate the problems facing the creative industries in the digital age. And it ducks the real issue of how to remunerate creators for mass digital private copying of their work. It may well harm creators’ further in terms of bolstering the widespread public perception that all music should be free – thereby hampering and/or rendering impotent all industry attempts to establish a legitimate market structure for online distribution and paid-for downloads.

AIM has initiated and, with British Music Rights, is leading a pan-industry think tank to examine a copyright concept currently called Value Recognition. This assumes that the private copying and sharing of music by consumers is not only inevitable, it is desirable, provided the industry can establish appropriate value for the use of their copyrights with the service providers. This would allow different usages to achieve different values according to the services offered. It does not require the government to impose levies. Commercial licenses in the open market will be the basis of agreement with service providers. Failure to strike the right commercial balance between licensee and licensor can be referred to the Copyright Tribunal, as exists presently with large and small commercial operators for some usage types.

More on the question of Value Recognition can be found in the New Statesman publication Copyright Reform in the Digital Age published 18 September 2006 and on this website (see Music Law Updates Archives).

On denying owners of copyright in recorded music an extension of term of protection

AIM notes with disappointment that Mr. Gowers has not made a recommendation to extend the current copyright term. Copyright extension is a complex issue. There are pros and cons to extension, but after much debate, AIM’s view is that parity between the USA and writers and composers is only just, fair and reasonable, and any other arrangement represents discrimination against the performers who bring the music to life. AIM believes that any copyright extension should be married to the creation of a public fund for creativity. This fund could be used to support the digitisation, restoration and preservation of the nation’s National Sound Archive, held at The British Library. The fund would be created by a charge on PPL income earned on the extended works. AIM believes in the ‘Use It or Lose It’ principle, and recommends that the artist is able to release his work if the copyright owner chooses not to make it available.

Both are major issues, and AIM did not expect Gowers to have found a complete solution within nine months. The seemingly simplistic judgment behind these two recommendations seems to point to AIM’s cautious lack of high expectations being well founded. The Gower’s Review is patently not conclusive in its reasoning, its element of issue-avoidance or its wholly negative recommendations in terms of copyright extension and the creation of a private copy exception.

AIM believes strongly that this Report can and must only be seen as the starting point for a historic, now urgent, debate – leading to positive, future-proof decisions which benefit as many constituencies as possible. The real debate will need to hear currently-developing new thinking from all industry stakeholders, who are engaged in unprecedented levels of collaboration in considering the future of creators, and producers’ rights in the digital age.

No Comments

Comments are closed.