In December 2005, Gordon Brown announced the commissioning of an independent review of the intellectual property framework, to make sure it was fit for a digital age. A year on, the review, conducted by the former editor of the Financial Times, Andrew Gowers, has published its findings.

While press headlines champion tougher penalties and more resources to tackle music and film piracy, and commentators debate the failure to recommend an extension to the term of protection for sound recordings, the report’s main focus is on building more “flexibility” into the copyright regime.

For flexibility, read “exceptions”.  The list of new exceptions is long and can be divided into two categories - the pragmatic and the problematic.  Falling into the pragmatic category are exceptions to allow libraries to copy works in order to archive them and an exception for orphan works, under which a user will be able to use a work, provided reasonable efforts have been made to trace the rights owner and then acts reasonably should the owner subsequently make a claim.

More problematic is a recommendation for the introduction of a new private copying exception to legalise the transfer of music from CD to other formats, such as MP3 players.  This may seem sensible, but under EU law, national governments are obliged to consider “compensation” for rights owners to accompany such an exception.

In most countries, this means some form of levy on blank media or hardware.  The report suggests that compensation can be incorporated into CD prices for all future releases.  However, with already tight margins and supermarkets increasingly dominating retail, what realistic chance is there of raising CD prices?

Even if this were possible, Gowers acknowledges that it would not compensate rights owners for the copying of past releases.  Therefore, he suggests collecting societies should issue a blanket licence to cover such circumstances.  What is not clear is who the licensee is.  An attempt in the 1980s to run a private copying licensing system, with consumers as the licensees, was an out and out failure. So Gowers’ proposals for compensation, on past record, would appear to be unworkable.

Also problematic are two new proposed exceptions covering parody and sampling (called “transformative use” in the report).These risk undermining revenue from the licensing of samples, as well as loosening creators’ grip on their moral rights.

It’s not all bad. Some of these changes will need to be introduced in Brussels and this gives more time to put forward opposing arguments.  The report also contains some welcome recommendations on copyright education, reforming the Patent Office and perhaps most importantly of all, securing better cooperation from Internet Service Providers.  If they don’t play ball by the end of this year, the Government will consider legislation.