We met with AFIP and the BPI at the start of our trade body meetings and again at the end. Their advice on other trade bodies to meet was invaluable to our review. We explained the nature of our research and how our project is about understanding the nature of the processes used to measure infringement.
The Alliance was very keen at the outset to stress that it was important to be able to distinguish between civil and criminal infringement, and that we should measure different ways in which IP crime is prosecuted. It considered patents different to the other IPRs covered by AFIP whose focus, given its membership, is on copyright, trademarks and design rights. It emphasised the importance of both digital and physical infringement and the role of Trading Standards in enforcement.
On how best to find evidence and data pertaining to the specific enforcement of rights of its members, a number of suggestions were made:
1. Regarding design rights, we were guided to ACID and also informed that ACID runs a series of membership surveys as well as producing case studies.
2. We were advised to speak to the BVA, whose annual survey with Ipsos is considered the ‘standard’ amongst Alliance members for its measurement of IPR infringement.
3. The BPI recommended we review its counterfeit report from 2007, as this is most recent one BPI have done. BPI also suggested we refer to the Wiggins annual entertainment survey, which has a strong focus on digital.
4. AfIP mentioned the gaming industry, where it appears that there is little enforcement action taken by industry apart from Sega and Sports Interactive; the latter company developed the ‘Football Manager’ game and actively seek to protect its rights. An important consideration is that gaming firms have additional levels of protection available from digital rights management (DRM) and technical protection measures (TPM) to protect rights to software and hardware.
5. It was also suggested we talk to the Anti-Counterfeiting Group (ACG), especially in relation to brands and trademarks.
We had a discussion on new methodologies to measure infringement, and both doubted whether there would be a single methodology for the copyright industries, let alone other IP rights-based industries. We mentioned we were possibly looking at other tools, including those provided by new-generation tech firms like Musicmetric. BPI agreed this was a possible next level for measurement.
In relation to the book industry, we mentioned that there is little industry-wide research but that some of larger book publishers do carry out some piracy research, even though they are unable to share their findings with others due to competition law.
It was also recommended we view the latest iteration of the IPO Trading Standards Survey, published in July 2013.
Meeting 2: at BPI, 9th July 2013
The aim of this follow-up meeting was to provide the Alliance group with an update of our research project and preview some of our findings.
The team commented on the lack of suitable, purely academic research on measuring infringement in the copyright part of our review. AFIP asked whether this was because most viable academic research was either government or industry commissioned.
PA pointed out that it has data on identifying infringement but not on the scale of infringement. PA is happy to share its data with us. AFIP noted offline enforcement activities are very dependent on human resources and budget, and much less so on research findings. The Alliance members’ resources are very much focused on active enforcement.
enforcement. We are not aware of industry or government data on the impact of enforcement on the IPR infringement problem.
With regard to online infringement measurement, we indicated current methods seem only to achieve a snapshot, rather than an accurate measurement of the real scale of the infringements. This echoes comments from RIAA and the IFPI, with the latter accepting that piracy is here to stay and never can be measured fully. This also seems to bear out distinguished statistician David Spiegelhalter’s276 comments about accepting we live in a world of uncertainties.
BSA argued that the patent system in the UK works well, and offered to help find more US industry information on patent-infringement measurements. Some concern was voiced that patents were part of our remit, given the substantial differences in infringement relative to copyright and trademarks. It was also felt that it would have been more effective to concentrate the study’s efforts on the demand side of IPR infringement.
ACG pointed to hard data regarding trademarks on the BASCAP website,277 and noted that
much of the copyright research we have reviewed is also relevant for trademarks.
PA argued that the amount of ad-hoc research reflects the rapidly changing market and that methodologies have to change to keep pace and address the most urgent and newest market issues. PA noted that the main driver for undertaking research would be the cost/benefits analysis to support business decisions and investment decisions, rather than just for lobbying purposes. This also explains why some research and data remain hard to locate and why trade bodies sometimes do not publish the information.
ACG noted that the pharmaceutical industry is very hesitant to disclose any statistics and that it is difficult to get them engaged. The only information available is via HMRC. Equally, as regards Customs seizure figures, the only available official data is via EU Customs, and any other disclosure of figures would be unlawful. This might change with a new law due to come in, even if it is not clear how and when.
We were informed that with regard to UKIE, gaming data and stats are quite fractured, as the market has changed significantly. There are some day-to-day insights similar to other trade bodies, but the measurement and tracking of on-going IP enforcement is not being done. “The world is changing too quickly.”