IPO & Ofcom: Measuring IP Rights infringement Research (University of Hertfordshire and ...

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Measuring Infringement of IPR IPO Report Summary Findings

A Review of existing methods and

recommendations for new robust methodologies

September 2013

Dennis Collopy and Dr Tim Drye

Dennis Collopy (UH) and Dr Tim Drye (AN)

CONTENT

►  Background

►  Approach Methodology

►  General Observations

►  Distinctive Features

►  Harmonising Framework

►  Application of the Framework


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IP INFRINGEMENT


BACKGROUND

Study commissioned by the intellectual Property Office (IPO)

Scope: Review of methodologies identifying the scale of infringement

across 4 main IP Rights Types:

Copyright (online & offline)

Trademark Patent Design Rights


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METHODOLOGY


METHODOLOGY

Team composed of 3 academics from the University of Hertfordshire and 3 Research/Industry experts from Audiencenet

33 48

11

27

38

73 14 22

Online Copyright

infringement

Patent

enforcement

Counterfeiting

and piracy

Design right

enforcement

reviewed

used

SOURCES

4 month review of Grey Literature, Trade Body approach to research

and views from Experts in the field of piracy, big data,

Top down & Bottom Up Approach

Classification and segmentation of available research

•  IP Type

•  Source of Funding

reviewed

used

reviewed

used

reviewed

used


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TRADE BODIES RESEARCH


o  Cross sector research compiled from different data sources

o  Some robust but some not this undermines credibility of the whole

(e.g Tera)

o  ACG advocate approach of using government, industry and

consumer data

o  Industry generated market intelligence (e.g. Fact)- is this collated

and made available?

o  Software, recorded music and film/video bodies carry out some

good quality research on online (c) infringement

o  Commitment to diverse approaches and high standards

o  Willing to consider alternatives

o  Even if methodology flawed commitment to consistent and regular

measurement (RIAA & BVA/MPAA)

o  Most trade bodies do not measure scale of infringement - rely on

notice and takedown

o  Evident lack of resources - financial and human

o  Member surveys - ACID and DACS

o  One body assembled piracy data from different sources and

combined into one statement but based on variable quality data



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o  Industry research not always about lobbying - also about investment decisions,

hence confidential nature of data.

o  Some research commissioned by trade bodies designed to enable members to

react to infringement.

o  Some trade bodies (PA) provide anti-piracy tools but little evidence the data from

this is captured in systemic fashion and available to government.

o  Resource issues: financial, lack of suitably qualified/ trained staff.

o  Industry instinct is act quickly – fast changing markets –greater emphasis on

day-to-day anti-piracy measures.

o  Cannot always wait for government to act.

o  Dissatisfaction with legal remedies online (e.g. Notice & Takedown)

MOTIVES


EXPERTS VIEWS

o  MUSICMETRIC – Track content using different identification tags.- Data not based on swarms

but downloads,- assume all content on Bittorrent © infringing.

o  NIELSEN - Nielsen digital media manager (ndmm) ”digital watermarking and fingerprinting” -

aim to provide “more reliable way to track content”.

o  BITTORRENT - Data show able to distinguish between different types of content but not track

what users do with the torrents, no single server

o  COUNTY ANALYTICS - BT ran an ad targeting service to monitor user behaviour using DPI. -

Main emerging problem in online behaviour namely stream ripping - layers of identification of

piracy ; target identification, content verification, container labelling,manual identification,

metadata, digital hash, signed metadata, fingerprinting, watermarking - the best piracy

identification approaches is layered approach,

o  BIG CHAMPAGNE - Analysis of torrents.

o  ONEHOUSE - Problems of measuring ipr infringement online as illustrated by the tor project -

defends against a form of network surveillance

Not part of the original brief – overall sense that future methods for measuring

IP infringement more accurately lie as much in technological tools as surveys


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GENERAL OBSERVATIONS


The Problem of Divergent Methods and Non-Transparency inhibiting like for

like comparisons or methodologies

•  Lack of methodologies disclosed

•  Lack of consistency in methodology

•  Inconsistency between approaches

•  IPO’s Good Evidence Guide mostly absent –

•  Lack of principles & best practice

•  Lack of coherent Vocabulary and Terminology

•  No single methodology usable in any of the IPR rights

•  Survey approach dominant

•  Nature of Research Objectives:

•  Ad hoc vs. Longitudinal

•  Reactive vs. pro-active research

•  Hypothesis vs. data driven

•  Commissioning bodies objectives driving research

Disconnected approaches – within and between segments,

-delivery of ad hoc results - general lack of any common overarching reference

points both longitudinally or sectorially - little recognition of the perspectives of

differing stakeholders.

GENERAL OBSERVATIONS


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DISTINCTIVE FEATURES



Most of the differences arise from the different types of

participants, the costs/risks of infringement and recompense:

Copyright Trademark Patent Design

Victim Content Business

Business Business Sector

Business Sector

Perpetrator Consumer Business Business Sector

Business Sector

Audience Consumer Consumer Market Market


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INDUSTRY RESEARCH

o  Most not of standard suitable for policy making

o  Most not accompanied by methodology

o  Some outstanding pieces of research

o  Consistency & regularity of research crucial

o  Most research is survey based

o  Most annual surveys snapshot 'deep dives' not longitudinal

o  ad hoc surveys commonplace

o  Question replicability and verifiability

o  Tech developments like data mining offer possible long-term solutions

ONLINE COPYRIGHT ENFORCEMENT




6 main Industry methodologies identifying the scale and value of

infringement in different entertainment sectors:

o  Literature review - collation of secondary data sets e.g. Unifab

o  Agent-based model e.g. Sandtable

o  Online surveys e.g. Wiggin and UK Music

o  Bundled survey approach e.g. Ofcom/Kantar

o  Mixed approach e.g. data mining (IDC) and survey based (Ipsos) research for BSA

o  Observational approach - use of various technologies to observe actual behaviour across all forms of online entertainment consumption e.g. NBC/Universal

Envisional



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GOVERNMENT/ ACADEMIC

•  None provide comprehensive methodology for input data

•  Surveys dominate

•  Focus on consumer behaviour not levels of infringement

•  Some recognise flaws of survey approach - under-reporting of illicit behaviour

•  Recommend observational approach

•  Most academic studies cannot be generalised – few using representative samples




INDUSTRY

o  Harder still to measure infringement

levels

o  Reliance on consumer surveys

o  Literature focus on broader issues of

C&P-result of commissioning process

o  Adoption of CEBR 2000 'omnibus

approach'

o  Standard measurements post trips

based on customs seizures

o  Mark Monitor approach - has potential

but little recognition of skewed nature

of sample-best for individual brand

GOVERNMENT & ACADEMIC

o  Heavy reliance on customs seizures - mere

fraction of total

o  OECD correlated industry and seizure data but

recognise this is crude

o  OECD suggest combining objective and robust

methodologies

o  But little systematic collection and evaluation of

data

o  Some rely on anecdotal and fragmentary info

o  Evident a mixed approach on hard data from

government, industry and consumers

o  OHIM observatory note the 'snapshot' nature of

most studies

o  Rand approach includes four solid approaches but

5th approach an economic model based on

unreliable data set.

COUNTERFEITING & PIRACY (C & P)



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INDUSTRY

►  Discernible lack of industry generated research

►  Competitive strategies in industries dominated by small number big players in tech and pharma

►  Porters five forces apply

►  Microsoft IP license strategy post 2003 - aim to stop litigation and build relationships

GOVERNMENT

►  Bentley et al (2009) mixed methodology survey firms and sampling court cases

►  Benefits of cooperation with industry and IP practioners to improve verification

►  But this still only captures fraction of market

PATENT ENFORCEMENT




ACADEMIC

► Real insights based on analysis of litigation nb UK and USA

► Litigated patents greater value than non-litigated patents (Helmers & McDonagh)

► NPE’s responsible for 40% (from 22% over 5 years) of patent infringement lawsuits

filed in the us( Jeruss & Feldman et al)

► Excluding pharma & chemistry industries, costs incurred litigating patents outweigh the

earnings gained

► Internet-related patents litigated 7.5 to 9.5 times more frequently than non-internet patents in

the software industry.

► High litigation costs benefit larger firms(Schliessler)

► Increasing importance of compulsory licensing over injunctive relief in US decision post

eBay v mercexchange (Venkatesan)

► Significant amount of infringement activity hidden from measurement (settlements / cross

licensing)

► Weatherall & Webster 2010 inventors survey builds on the 2009 model proposed by

Bentley , Weatherall & Webster

► Model viable within other IPR (see designs)

PATENT ENFORCEMENT


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DESIGN RIGHT ENFORCEMENT

►  Little relevant literature - some government & academic

►  Complexity (patchwork) of rights for designers includes some (c) remedies

►  Existing litigation costs inhibit infringement actions by individual designers and sme's

►  Possible changes if Carter-Silk and Lewiston’s 2012 recommendations implemented

►  ACID survey not fully representative but good basis for methodology to measure

infringement

►  Possible use of customs data but same caveats apply about representation of infringing

activity

►  Could integrate with Weatherall & Webster patent model to survey designers

►  But must use in conjunction with other public data sources



CONCEPTUAL FRAMEWORK


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1. Highly skewed behaviour 2. Dynamically changing perceptions

3. Rapidly changing costs of distribution and

recompense

4. Driven by perception of risk

CONCEPTUAL FRAMEWORK


APPLICATION OF THE

FRAMEWORK


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APPLICATION OF THE FRAMEWORK

PUBLIC

REFERENCE

POINT

AUDIENCE

CREATOR

PERPETRATOR


THE CONCLUSION: A CALL FOR CONSISTENT OVERSIGHT


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A call for the need to establish a consensus

around the common stack in the ground, a role in

this instance for a government contribution to act

as the guardian and frame of reference, this will

require a commitment to a sustained and regular

reporting of a sampling of the participants,

alongside longitudinal collation of extreme

behaviour.

CONCLUSION


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