|Title:||Intellectual Property Litigation at the Court of Session: A First Empirical Investigation|
|Citation:||Cornwell, J. (2017) Intellectual Property Litigation at the Court of Session: A First Empirical Investigation. Edinburgh Law Review, Volume 21, Issue 2, pp192-216.|
|Key Related Studies:|
|About the Data|
|Data Description:||A survey was issued to all law firms with IP practices as listed by the Law Society of Scotland, generating 31 usable responses. Thereafter, 12 semi-structured follow-up interviews were conducted.|
|Data Type:||Primary data|
|Secondary Data Sources:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||No|
|Government or policy study?:||No|
|Time Period(s) of Collection:||
“Scotland is said to enjoy an economy rich in intellectual property (“IP”), but reported decisions from the Court of Session in IP matters are rare. This article analyses a new dataset of Court of Session IP actions compiled from court records for the period from 2008 to 2014, alongside a survey and interviews conducted among Scottish legal practitioners working in the field of IP. The research provides insights into the Court of Session's IP caseload, parties and their sectors, the subject matter of claims and remedies sought. This article discusses key themes emerging from the research data against the broader context of civil justice reform and jurisdictional competition between the Scottish, English and other courts.”
Main Results of the Study
Copyright claims were the most litigated right of all IP rights, which comprised a total of 59.2% of the dataset, with bulk enforcement claims forming more than half of this figure. Such bulk enforcement claims make up all but one of actions with claims of under £10,000. Only two of the overall copyright cases concerned online file-sharing actions.
Of the parties bringing these claims, non-creative parties (such as oil, technology, construction etc.) form the majority of non-bulk actions, with only five actions brought by parties in the creative sector. Furthermore, the nature of infringement claimed in these cases tend to revolve around more commercial or technical materials, such as reports or branded promotional materials.
Policy Implications as Stated By Author
Whilst the author does not make any explicit policy recommendations, they do highlight the very small incidence of file-sharing related litigation, which tends to be overemphasised in policy debates. Furthermore, members of the creative industry appear to be under-represented in comparison to non-creative, commercial pursuers. An IPEC-style procedure reform may assist with concerns of increased competition from English and European courts.