[Guest post] New empirical research on Intellectual Property Litigation and Platform Regulation

The IPKat is happy to host this guest contribution by Prof Martin Kretschmer (CREATe, University of Glasgow):

New empirical research on Intellectual Property Litigation and Platform Regulation 

by Martin Kretschmer

CREATe, the UK Copyright and Creative Centre based at the University of Glasgow, is presenting new empirical research in a half-day conference on 26 February 2020 at the British Institute of International and Comparative Law in London. 

Four empirical studies on IP Litigation 

Litigation is the theme for the first part of the event, with the presentation of quantitative studies on intellectual property litigation in the Intellectual Property Enterprise Court, High Court of England and Wales, and Court of Justice of the European Union. Dr Sheona Burrow and Dr Elena Cooper (University of Glasgow) negotiated exclusive access to all Intellectual Property Enterprise Court Small Claims Track Court (IPEC STC) files for its first three years of operation (1 October 2012 to 31 December 2015). They explore the types of remedies commonly granted by the Court, the sums awarded and the most pertinent arguments when assembling a case. An underpinning paper was published in the journal Legal Studies: Photographic Copyright and the Intellectual Property Enterprise Court in Historical Perspective. 

Dr Georg von Graevenitz (Queen Mary, University of London) and Dr Luke McDonagh (City University) developed a dataset containing details of all court cases on copyright heard at the High Court and the Intellectual Property Enterprise Court during 2009-2015. With the support of judges at the Chancery Division – including the High Court and IPEC – the researchers used a method (capturing information on judges, parties, claims, defences, and outcomes including appeals) that had already delivered detailed data on patent cases. See Christian Helmers, Yassine Lefouili & Luke McDonagh, Evaluation of the Reforms of the Intellectual Property Enterprise Court 2010-2013 (UKIPO 2015). The new research shows that copyright is the most litigated right in the High Court (with an average of around 300 claims per annum, ahead of trade marks, patents or designs). The majority of copyright cases are taken by collecting societies PPL/PRS and FA Premier League and are settled quickly, before a court hearing. 

Georg von Graevenitz will also present a new study on trade mark clutter and non-use at the EU Intellectual Property Office. To register a trade mark the owner must declare which goods and services the mark will be used for. This restricts which marks other applicants can obtain. Jurisdictions differ in how they ensure that registered use accords to actual use. Exploiting the 2016 reform of trade mark fees in Europe, von Graevenitz will show that registered use very frequently exceeds actual use. 

The work by Dr Marcella Favale (Bournemouth University), Prof. Martin Kretschmer and Prof. Paul Torremans (University of Nottingham) investigates the influence of EU Member States on the rulings of the Court of Justice of the European Union, again with a focus on copyright law. Examining 170 documents relating to 42 cases registered between 1998 and 2015, they measure empirically the impact of submissions by Member States and the European Commission on the interpretation of copyright concepts. Findings indicate that France is the most influential country by some distance, both in terms of the number of interventions (an ‘investment’ in policy) and in terms of persuasive power (arguments adopted by the Court). The evidence also suggests that the departure of the UK from EU litigation will disturb the balance of CJEU jurisprudence. The full paper entitled Who Is Steering the Jurisprudence of the European Court of Justice? The Influence of Member State Submissions on Copyright Law is forthcoming in the Modern Law Review. 

Following presentations of these four studies, panel discussions will respond to the findings. Participants will include Dr Ilanah Fhima and Dr Daniela Simone (UCL), Nick Saunders QC, (Brick Court Chambers) and Michael Skrein (Reed Smith). 

Mapping Platform Regulation in the UK 

The second part of the conference focusses on Platform Regulation. Prof. Martin Kretschmer, Prof. Philip Schlesinger and Ula Furgal (University of Glasgow) will launch a new project (funded by the AHRC Creative Industries Policy & Evidence Centre), mapping the UK regulatory landscape. The discussion following the presentation of the mapping study will feature five UK regulators operating in this space: Ofcom, Competition and Market Authority, Information Commissioner’s Office, Intellectual Property Office and the Centre for Data Ethics and Innovation. 

Platforms have emerged as a distinct new regulatory object. Back in 2003, the Nobel prize-winning economist, Jean Tirole, analysed a new form of what he termed ‘platform competition in two-sided markets’. The so-called ‘safe harbour’ that limits the liability of online intermediaries has now been in place for almost two decades (US Digital Millennium Copyright Act 1998, EU eCommerce Directive 2000). Since 2016, however, a string of new policy initiatives targeting online platforms has surfaced at a rapid pace. The trendsetting German NetzDG Law of 2017 required social media platforms to remove manifestly unlawful content within 24 hours, enforced with high fines and audited through reporting requirements; Australia launched a far-reaching digital platform inquiry in 2017 focusing on competition issues associated with the US tech giants Facebook and Google; Art. 17 of the Copyright in the Digital Single Market Directive (which the UK will not implement) controversially makes certain platform liable for content uploaded by their users. The UK committed last week to an Online Harms regulator. The new European Commission will announce this week a new framework for content responsibility, potentially creating a pan-European digital regulator. 

The UK mapping study proceeded in two steps. First, we performed a content analysis of eight official UK reports published between 2018 and 2020. In a second step, the regulators mentioned were analysed for their statutory basis (including the extent they rely on EU Law), duties and processes. 

The reports providing the primary sample are: 

• Ofcom discussion paper: Addressing harmful online content: A perspective from broadcasting and on-demand standards regulation (September 2018)
• Cairncross Review (DCMS): A sustainable future for Journalism (February 2019) 
• HoC DCMS Committee: Disinformation and ‘fake news’ (February 2019) 
• HoL Communications Committee: Regulating in a Digital World (March 2019) 
• Furman review (Treasury, BEIS): Unlocking digital competition (March 2019) 
• Online Harms White Paper (DCMS & Home Office) (April 2019) 
• CMA market study: Online platforms and digital advertising (interim report) (December 2019) 
• Centre for Data Ethics and Innovation: Review of online targeting (February 2020) 

Our preliminary findings indicate that the regulatory landscape in the UK is shaped as a response to perceived social and economic harms caused by the activities of two companies, Google and Facebook. The official documents analysed for the mapping study show that 3320 (76%) of 4325 references to firms in the primary texts are to the US firms and their subsidiaries: Google (incl. YouTube) = 1585 references and Facebook (incl. Instagram, WhatsApp and Messenger) = 1735 references. Only two platforms headquartered in Europe are mentioned (Spotisfy and Ecosia), Chinese firms are referenced 61 times. No UK firms feature. This points to a structural problem that any regulatory intervention will need to consider. 

There are close to 100 online harms mentioned in these reports that are said to need addressing, with a dominance of terrorism, fake news and child related harms. Our mapping study categorises these by the field of law into which they fall but many have no clear legal basis for their alleged harmfulness. A wider “duty of care” proposed in the UK government’s Online Harms white paper is designed to catch a range of such harms. Designing a regulatory process that removes harmful content while holding private firms to account in the process of doing so is challenging. As I have argued elsewhere (in joint work with Kris Erickson), “[t]here is a deep tension between bringing platforms into the regulatory sphere and delegating regulatory functions (e.g. monitoring and filtering) to platforms themselves.” 

Following presentation of our mapping study, there will be a discussion with five regulators that have a stake in this rapidly evolving field. Ofcom, the media regulator designated by the government as likely to become responsible for online harms; the Competition and Market Authority; the Information Commissioner’s Office; the Intellectual Property Office, and the prospective regulator for Artificial Intelligence (the Centre for Data Ethics and Innovation currently based in the Department for Digital, Media, Culture and Sport). 

The conference on 26 February is organised as part of the workstream Intellectual Property, Business Models, Access to Finance and Content Regulation of the AHRC Creative Industries Policy & Evidence Centre (PEC). Further information, including a full programme, is available here. The event is free.