Archive for the ‘IPR’ Category

“A strong IP regime is an engine of growth, NOT a barrier” says UK broadcaster

Tuesday, March 12th, 2013

This morning ICOMP attended the UK Culture, Media and Sport Committee’s eighth evidence session to explore the ways in which broadcasters and broadcasting associations are supporting the creative economy and areas in which the UK government could contribute. Among the panel of witnesses were representatives from the BBC, ITV, Channel 4 and BskyB.

Among the topics raised for discussion was the IP framework in the UK and the reforms suggested to it by the Hargreaves Review in 2011.

By way of a brief memory-refresh, the Hargreaves Review was commissioned in 2010 by Prime Minister David Cameron in order to ascertain whether laws designed 300 years ago to incentivise innovation by protecting creators’ rights are now obstructing innovation and economic growth. In response, the Review issued 10 top-line recommendations including the following:

  • Reform should be driven my economic evidence rather than lobbying clout.
  • The establishment of a Digital Copyright Exchange so rights holders can more efficiently license their content.
  • Legislation to enable the licensing of orphan works .
  • Creating pragmatic exceptions to copyright which protect activities such as library archiving and format-shifting for personal use, which do not prejudice its core objective: incentivising content creation.
  • An evidence-based assessment of the connection between design rights and innovation.
  • The Intellectual Property Office should be given the necessary legal mandate to pursue economic objectives, access data and issue statutory opinions.

The broad message which came out of today’s session was that, subject to a few nuances, many broadcasters are cautiously supportive Hargreaves’ recommendations. The BBC and Channel 4 both agreed with the Review’s decision to stop short of creating a “fair use” exemption to IP legislation (as is the case in the US) and supported the notion that a balance could be better achieved by carving out certain exemptions to the UK’s existing framework such as  the “personal use” exemption. Both were also in favour of a refined method by which content-creators could more efficiently licence their content. Indeed, as the BBC’s Group Director for Strategic Operations, John Tate remarked: “Ownership rules must be respected but there could be slicker systems for the clearing of rights”.

The one substantive caveat came from ITV’s Director of Policy and Regulatory Affairs, Magnus Brooke. Interestingly, he said that the aspect of Hargreaves with which ITV took particular issue was the tone.  The impression given by the Review was a robust framework of IP legislation was a deterrent to investment in creativity. This was unhelpful and untrue.

Said Brooke: “A strong IP regime is an engine of growth, NOT a barrier”. We couldn’t have put it better ourselves.

Regards,

ICOMP Secretariat

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Almunia issues strongest warning yet to Google

Friday, January 11th, 2013

Last night, the European Commissioner for Competition Joaquin Almunia issued his clearest criticism to date of Google’s business practices, revealing to the Financial Times his “conviction” that Google “are diverting [search] traffic”. “They are monetising this kind of business, the strong position they have in the general search market and this is not only a dominant position, I think – I fear – there is an abuse of this dominant position,” Mr Almunia remarked.

These comments represent a stark contrast to the stance taken by the US Federal Trade Commission at the start of the month. After a shorter investigation into Google’s alleged abuse of dominance, the FTC opted for what ICOMP member Marc Pinter-Krainer called  “light-handed approach” and let the company off with a voluntary agreement in respect of two other abusive practices being investigated by the European Commission but nothing with respect to the way it orders its search results. In the aftermath of the Federal Trade Commission’s decision, ICOMP called upon the European Commission to take a more robust approach on behalf of the online community and Mr Almunia’s remarks last night constitute a welcome statement of intent to do so.

Indeed, dismissing suggestions that his position would cause a breach with the US, Mr Almunia said: “I have never received a single message coming from the other side of the Atlantic saying, ‘hey, what are you doing?’ Everyone knows this is global.”

Google is thought to have argued that a simple way to remedy the harmful business practices at the heart of this investigation would be to label more clearly Google’s own services which Google is artificially elevating to the top of its search results. However this cosmetic measure would not solve the underlying issue that Google continually leverages its vast reserves of advertising revenue to dominate new markets and destroy competitors. Moreover, labeling will not repair the egregious damage Google’s behaviour has already caused to hundreds of companies in the online marketplace.  Still less would it address the market power that Google has grabbed through unlawful practices and the need to restore effective competition.

It is worth noting that Mr Almunia also mentioned the fact that the EC’s investigation was, quite rightly, focused on “the way [Google] present their own services” and that he was “not discussing the algorithm” – the method used to determine the ranking of search results. ICOMP welcomes this announcement: the key solution is not to require Google to divulge its business secrets but to ensure it applies the same algorithms to all sites, both its own and its competitors.

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A Glimpse Inside Google’s Antitrust Woes

Wednesday, October 31st, 2012

On 29 October 2012, Google Inc. filed its standard quarterly financial report with the US Securities and Exchange Commission.  US law protects investors by requiring listed companies to disclose financial and other significant information on a regular basis.

It is pretty standard practice to disclose brushes with regulatory authorities, investigations into allegations of unlawful behaviour, and significant civil litigation matters.  But Google’s recent disclosures shed light on the extraordinary scale of the number of anti-trust investigations currently going on into its practices.

United States

Google disclosed that in the US its business practices, including search and advertising, are being investigated by the U.S. Federal Trade Commission’s (FTC) Bureau of Competition and, in June 2011, it received a Civil Investigative Demand (CID) from the FTC and a subpoena from the FTC’s Bureau of Consumer Protection.  Google has also received similar CIDs from the State attorneys general from the states of Texas, Ohio, and Mississippi.

Google also disclosed that, in June 2012, it received a CID and a subpoena from the FTC’s Bureau of Competition seeking documents and information broadly related to Motorola’s licensing practices for standards-essential patents and use of standards-essential patents in litigation.

European Union

With regard to the European Union, Google acknowledged that the European Commission’s (EC) Directorate General for Competition has also opened an investigation into various antitrust-related complaints against Google.   This seems to be the first time that Google has acknowledged all the complaints to which it has been asked by the Commission to respond.  It confirms speculation that the number of formal complainants now numbers at least twenty.  A full list of the complainants can be found below.

Google also confirmed that the EC has opened an investigation into Motorola’s licensing practices for standards-essential patents and use of standards-essential patents in litigation on the basis of complaints brought by Microsoft and Apple.

Rest of World

Finally, Google acknowledged that the Comision Nacional de Defensa de la Competencia in Argentina, the Competition Commission of India, and the Korea Fair Trade Commission in South Korea have also opened investigations into Google’s business practices.

 

David Wood,

ICOMP Legal Counsel

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List of parties that have submitted formal complaints against Google to the European Commission (in chronological order):

Ciao; Ejustice; Foundem; 1plusV, parent company of Ejustice; VfT, an association of business listings providers in Germany; Microsoft; Elfvoetbal; Hotmaps; Interactive Lab; nnpt.it; dealdujour.pro; the Spanish Association of Daily Newspaper Publishers; Twenga; the German newspaper associations, Bundesverband Deutscher Zeitungsverleger (BDZV) and Verband Deutscher Zeitschriftenverleger (VDZ); Expedia; Tripadvisor; Odigeo; Streetmap; Nextag.

 

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Copyright for the Real World

Wednesday, September 12th, 2012

At the 2012 Intellectual Property and Innovation Summit in Brussels on Monday, Neelie Kroes, the European Commissioner for the Digital Agenda declared that the existing copyright protection model is outdated and stifles innovation across the European Union, saying that “it makes it harder for individuals to create content and it’s not the best way to boost creativity and innovation.” The E.U.’s Copyright Directive, adopted in 2001, is based on recommendations dating back to 1998, which therefore far precede some huge recent milestones and internet innovations. Kroes stated that in 1998 “creation and distribution were in the hands of the few. Now they are in the hands of everyone: democratising innovation, empowering people to generate and exchange ideas, supporting and stimulating huge creativity.” She concluded that copyright legislation had to therefore be updated to meet the needs of the “real world”.

However, Kroes noted that it is not just the music and creative industries that have seen significant changes occur as a result of technology advancing. The research sector was pinpointed as an example where a change in copyright legislation would markedly help. “Today, new scientific discoveries don’t just come from new experiments, new drugs, new clinical trials: in fact, now, we can get new results by manipulating existing data. Data and text-mining techniques now lie behind a huge field of research, like human genome projects, potentially life-saving. They could hold the key to the next medical breakthrough, if only we freed them from their current legal tangle. Research activities are not clearly exempted from the copyright rule”.

Undoubtedly current copyright legislation is not perfect though it does provide a framework which can be used to kick start discussions on how to proceed in order to protect the livelihoods of content creators, owners and entrepreneurs. By helping to better protect the work of our creative industries so they can make money from their talent and creativity it will be possible to avoid disincentivising talent, which will surely happen if the current trend continues. The issues surrounding copyright need to be addressed but in a manner that prepares it for the swiftly evolving real world.

Regards,

The ICOMP Secretariat

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Online Travel Sector Faces a Significant New Challenge

Thursday, August 16th, 2012

Google has stepped up its assault on the online travel sector by announcing the acquisition of Frommer’s, the leading online and print travel guide business.   Frommer’s follows earlier acquisitions of ITA, the number one travel software and database provider, and Zagat, the leading restaurant review site.  These acquisitions are part of a strategy to leverage Google’s monopoly of search and search advertising into closely related adjacent markets, such as online travel.  The strategy has several components.

First, by monopolising vital sectors such as online travel, Google increases the amount of data it captures and entrenches its super-monopoly position in search.  The importance of scale in search is widely recognised, including by Google.  Scale in search is about not only numbers but the quality of the search results.  The more queries that are made, the more relevant the results are likely to become.  It is already impossible for rivals to compete effectively with Google in search because of the much greater scale that Google has achieved and this deal will only lengthen that gap.  In Europe, with the multitude of languages used for search queries, the gap is probably insurmountable as things stand.

Second, the strategy harms the ability of competitors in the online travel space to compete with Google and create rival pools of consumer data.   Google achieves this through its manipulation of search results and its discriminatory practice of directing consumers to its own results, rather than to objectively the most relevant sites.  By granting preferential search rankings to its own sites, Google demotes rivals to places in the listings where consumers are much less likely to click on them.  It has done this in other sectors and can be counted upon to do so in travel, unless prevented by regulators.

Third, it has a chilling effect on other online content providers who must fear Google’s ability to enter their markets at will and undermine their ability and incentives to compete.  Google is in a unique position as the owner/operator of the monopoly search platform to oversee the efforts of others to develop their online activity.  Where it sees others succeeding, Google can cherry-pick those ideas and launch its own competing commercial services, to which it grants highly uncompetitive advantages.  As such, there is a huge disincentive to invest in activities which Google might  decide to compete with.

The implications stretch far beyond attempts to monopolise travel guides or restaurant review sites.  In the immortal words from All the President’s Men: “Follow the money”.  Here, the money is in advertising.  Google generates about $2 billion to $3 billion per year from selling travel-related ads on its search engine and hotel- and flight-booking service, according to Herman Leung, a stock analyst at Susquehanna International Group LLP. Google entrenches its monopoly in search, and thereby protects its monopoly in search advertising.  Google extends its monopoly into online travel, and thereby monopolises travel-related ads.  Google discriminates in favour of its own local content sites, and thereby creates the conditions to monopolise local ads. 

These effects are felt not only by brands faced with a single outlet for their search, travel or local ads.  Rivals demoted in search rankings will effectively be obliged to increase their advertising spend with Google to regain some prominence with consumers.  For Google, it is a win-win situation.  For its rivals, it is lose-lose.

Consumers should care about these changes.  There may be superficial or short-term improvements in certain activities.  But the actual and potential downside is enormous.  Google’s acquisitions are not competition on the merits.  They are financed by deep pockets filled by years of monopoly rents in search-related advertising.  They are strategically designed to entrench Google’s monopoly and to snuff out any competitive threat to Google.  They reduce choice and destroy incentives to invest in jobs, growth and innovation.

It is so far unclear what regulatory hurdles Google will have to surmount to complete its purchase.  It can be assumed that the authorities will want to take a very close look at the competition implications of the proposed transaction and may well want to impose conditions, such as commitments not to discriminate in favour of Frommer’s in search rankings.  In any event, as with all of Google’s strategic acquisitions, this is a worrying development in which all other providers of online content will want to take a close interest.

ICOMP Legal Counsel, David Wood

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World Intellectual Property Day – 26 April 2011

Tuesday, April 26th, 2011

Today marks the 11th annual World Intellectual Property Day, an event established by the World Intellectual Property Organization (WIPO) in 2000 to dispel the notion of IP rights as recondite legal or business issues and “raise awareness of how patents, copyright, trademarks and designs impact on daily life”. The day is also dedicated to “celebrating creativity, and the contribution made by creators and innovators to the development of societies across the globe.”

This year, under the banner of “designing the future”, WIPO will hold a number of events spread across 5 continents to draw attention to “the role of design in the market-society and in shaping the innovations of the future.” In the UK, for instance, The Intellectual Property Office (IPO) has created a special World IP Day homepage and other activity featuring:-

• messages from the UK Minister for Intellectual Property (Baroness Wilcox) and the IPO design team;
• a selection of articles about World IP Day from UK Intellectual Property support organizations;
• a collection of useful World IP Day web links from around the UK; and
• timeline of ‘a year in review’ of new IP initiatives launched by the IPO in the past 12 months, and Information about some FREE IP tools and advice from the IPO.

In a message introducing the event, WIPO Director General Francis Gurry emphasises the role of design in drawing consumers to one product over another and ultimately determining the commercial success or failure of a product. “Design has been called ‘intelligence made visible’” comments Francis, “[it is] where form meets function. Behind every new design is a desire to break new ground, to improve and to enhance user experience and to enhance consumer experience.”

ICOMP strongly believes that Intellectual Property Rights foster innovation by enabling content creators to enjoy the commercial fruits of their efforts and is committed to creating an environment in the online markets under which all stakeholders fully respect the rights of authors and publishers while encouraging investments in innovation and the emergence of sustainable online business models.

Regards,
The ICOMP Secretariat

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The EUObserver: Creative Rights and Content Online

Thursday, November 5th, 2009

As the reach of the Internet continues to grow, EU regulators are scrambling to understand its implications for copyright and other intellectual property rights.

Managing creative content online will be one of the major policy challenges for the new European Commission and European Parliament over the next five years.
(more…)

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