Jane Cornwell from the University of Edinburgh reports on her research into IP enforcement with a focus on the creative industries in Scotland, for the Research Blog Series.
Project: Copyright and Civil Enforcement
Investigator: Jane Cornwell, Lecturer in Intellectual Property Law, University of Edinburgh.
What did your research aim to do?
My project explores IP enforcement in Scotland, with particular interest in copyright and the creative industries.
How did you do it?
I created a dataset on IP actions initiated at the Court of Session (the Scottish equivalent to the English High Court) from 2008 to 2014, compiled working directly from the physical case files. I also conducted a survey and interviews among Scottish IP legal practitioners (solicitors and patent/trade mark attorneys).
What are your key findings?
Copyright was the most litigated IP right in infringement actions at the Court of Session in the time period reviewed. However, more than half of those copyright cases were brought by ‘bulk enforcers’ such as collecting societies and other major rightholders. Few other copyright claimants were from the creative industries and non-bulk copyright claims tended to be more commercial (for example, involving technical or commercial material) than creative in nature. While there were encouraging suggestions from the practitioner interviews that creative industry IP disputes may increasingly be avoided or resolved because of greater IP awareness, concern was also expressed about the cost of court action particularly for smaller creative industry entities.
More broadly, a key finding was the importance of private, out-of-court decision-making by the parties in determining the outcome of disputes. Because of the relatively small total population of IP actions reviewed, it was possible to collect unusually detailed data on case trajectories and outcomes. Only a small number of the Court of Session IP infringement actions reviewed made it to any kind of final judicial determination, whether that was a finding after proof (trial) or other final judgment (such as judgment in default). Cases dropped away steadily, mostly as a result of the parties’ private strategic decisions, as they worked their way through the court timetable (Figure 1). Although evidence from other jurisdictions also indicates that most IP cases settle, it was notable to be able to analyse case trajectories to this level of detail.
What impact has your work had so far/what impact do you anticipate it will have?
My findings are of direct practical interest to Scottish practitioners and the Scottish courts. Early in 2017, I presented at a conference for practitioners and other stakeholders organised by leading Scottish law firm Burness Paull LLP, where the research was met with very positive interest. I also be fed back to the Scottish courts, publishing in the Journal of the Law Society of Scotland and presented my findings to Scottish practitioners at events going into the autumn of 2017.
Challenges encountered/Lessons learned
Research of this kind is very dependent on the time and availability of others – I am grateful to everyone who contributed to and facilitated this project.
Are there additional/new research questions still to be answered in this area?
Absolutely – it would be fascinating to keep updating the Court of Session dataset to examine trends over time, for example.
How has your association with CREATe helped to take things forward?
Access to a network of interdisciplinary researchers.
To find out more, see Jane’s publications:
J Cornwell, ‘Intellectual Property Litigation at the Court of Session: A First Empirical Investigation’, The Edinburgh Law Review 21.2 (2017): 192-216 (https://doi.org/10.3366/elr.2017.0410)
J Cornwell, ‘Between the formal and the informal: ‘repeat players’, ‘one-shotters’ and case trajectories in intellectual property infringement litigation at the Scottish Court of Session’, Civil Justice Quarterly (2017), Vol 36
J Cornwell, ‘Empirical consideration of enforcement action’ in C Waelde and A Brown (eds) Research Handbook on IP and the Creative Industries (Edward Elgar, March 2018)