Weatherall, Webster and Bently (2009)

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1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Weatherall, Webster and Bently (2009)
Title: IP Enforcement in the UK and Beyond: A Literature Review
Author(s): Weatherall, K., Webster, E., Bently, L.
Year: 2009
Citation: Weatherall, K., Webster, E., & Bently, L. (2009). IP Enforcement in the UK and Beyond: A Literature Review.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by: Cornwell (2017), Greenhalgh, Phillips, Pitkethly, Rogers and Tomalin (2010)
About the Data
Data Description: In relation to costs of litigation in the UK, the information is mostly anecdotal – and, of course, always subject to the qualification that it depends on many variables such as the technical or legal complexity of the case. Official data is not a useful source.

95 Klink (2004) simply asserts that "as a rule of thumb" a standard case involves costs to each party of around £1.5 million (ranging between £3 million for a complex case and £0.75 million for a small case). No source is given for these figures.96 IPAC (2003) makes a number of assertions about patent procedure in the UK and as it compares to other jurisdictions, on the basis of „evidence from patent lawyers in four other jurisdictions: USA, France, Germany and the Netherlands. On the basis of that information, IPAC asserted that „costs of a typical infringement/validity action in the High Court‟ were „around £1 million‟ (IPAC 2003: 13); that following streamlining of UK procedures there was „in effect no real difference in time to trial between‟ the UK and Germany. In 2006 CJA Consultants Ltd conducted a follow-up study (2006) to an earlier (2003) report on the feasibility of patent litigation insurance. As part of the study CJA sought to obtain estimates of the amount and cost of litigation, but only in the most general terms, and based on information from a relatively small number of practitioners.

Data Type: Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: Yes
Comparative Study?: No
Literature review?: Yes
Government or policy study?: No
Time Period(s) of Collection:
  • 2004
Funder(s):

Abstract

Recent reviews and policy discussions of the various IP systems have consistently lamented the lack of hard data on the extent of the problem of infringement, what it costs and whom it affects, how firms respond, and how successful existing systems for IP enforcement are. This is hardly a new problem: over the years uncertainty and issues of measurement have plagued attempts to assess the various IP systems, causing even the most rigorous assessors to throw up their hands and say, more or less, „we don‟t know if it works‟, whether „it‟ be the patent system (Machlup 1958) or copyright (Breyer 1970). Nevertheless, innovation and its promotion are important to all advanced economies, basing policy on statistical evidence is increasingly possible due to enhanced accessibility of data, and a great deal of effort has been invested into answering what questions we can about the effects of the IP system. It is opportune, therefore, to review where we are: what we know already, where the gaps in our knowledge lie, and what research could practicably be done to improve our knowledge. To this end, the authors have reviewed the literature concerning IP infringement and enforcement. One goal is to work out what we know already: that is, what research has already been done. But equally, the aim is to assist in identifying what exactly we want to know and whether it is possible to find out, in some reasonably objective way. Thus a second part of this review identifies a series of methodologies for researching issues of IP enforcement.

Main Results of the Study

Recent reviews and policy discussions of the various IP systems have consistently lamented the lack of hard data on the extent of the problem of infringement, what it costs and whom it affects, how firms respond, and how successful existing systems for IP enforcement are. The review analyses IP infringement and informal and formal enforcement, leaving out a more traditional study of the relevant judgements. By 'informal enfocerment', the authors mean the attempt of firms to enforce exclusivity in the subject matter of the rights, or to license those right. By 'formal enforcement', the authors mean the filing of proceedings with the court. We know, for example, that small and medium sized firms are using the patent and trade mark systems – or, at least, that they are obtaining IP rights – and that, indeed, their IP intensity is even higher than the IP intensity of larger firms. Our knowledge of how these firms are using these IP rights is more scant. There is no real evidence as to use of either copyright or designs (registered or unregistered) by firms. The study goes on to assess the extent and nature of IP infringement, the use of enforcement proceduree, the costs of IP litigation, and, finally, the challenges of a series of methodologies that are available for researching issues relating to IP infringement and enforcement.

Policy Implications as Stated By Author

It would be useful to establish better data collection on IP litigation. In other countries, most notably the US but also Australia researchers have been able to analyse the amount and nature of IP litigation; its duration; the proportion of cases which settle and, in the case of the US, features of firms that are involved in litigation. This has been possible, in part, due to the transparency of the court system (in particular, the online availability of full case histories) and the early establishment of a system to collect information about which patents are being litigated. Greater transparency in the courts (the establishment of electronic databases) would be a very large project and raises a number of issues of privacy and/or confidentiality of commercial information. Nevertheless, a number of courts around the world have taken steps in this direction. A system for reporting patents and trade marks being litigated ought to be relatively straightforward to establish (preferably for both trade marks and patent). This would start to build the basis for long-term research and policy analysis: and could be particularly useful to establish a basis for comparison in case a European patent court is established. In the absence of such a system, a project based on archival work similar to that done by Cremers in Germany might be an option to get a better picture of IP litigation in the UK, albeit expensive depending on the extent of data collection desired.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Green-tick.png
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
Green-tick.png

Datasets

Sample size: 4
Level of aggregation: Country
Period of material under study: 2004


Sample size: 155
Level of aggregation: Publications
Period of material under study: Non stated