Show us the evidence!

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Show us the evidence!

Increasingly, and rightly, policy-makers demand evidence about the impact proposed changes will have. Why is it so rarely forthcoming?

EU flag

The EU Digital Single Market (DSM) was the topic of a seminar held yesterday by the Westminster Media Forum. As readers who have been following European issues will know, the DSM is a set of proposals by the EU Commission designed to promote the development and spread of digital technology across national borders in Europe.

The Commission’s initial thoughts were aired in a communication in May, and since then we have been in what one lawyer described to me as “a phoney war”, before concrete legislative proposals are published, probably by the end of this year.

Concerns raised

Stan McCoy

Readers will also know that many of the contentious proposals will also affect IP owners, notably regarding geo-blocking and portability of content. Speakers including Richard Mollet of the Publishers Association, Stan McCoy (left) of the Motion Picture Association and Bill Bush of The Premier League lined up to set out their concerns at yesterday’s event.

One of the messages that came over strongly from these and other speakers was the need for evidence to show why changes are needed, how they will benefit consumers and businesses and what the pros and cons are. McCoy said: “The burden is on the European Commission to answer questions factually” while Bush complained that “the evidence of the real world is ignored”.

It’s a timely observation, as Paul Joseph of RPC noted in a presentation on the UK’s private copying exception at the same event. As he pointed out, that exception was quashed by the courts earlier this year just months after it had come into effect. The reason? The policy was “nowhere near to being justified by the evidence”.

Evidence-based policy

Pippa Hall

Coincidentally, today the UK IPO publishes its annual research plan, with 13 projects in three main policy areas (we have interviewed the Office’s new chief economist Pippa Hall (right) about the plans). The UK IPO is not the only IP office to have a team of economists doing research, but the government has repeatedly said that IP policy will be “evidence-based” so its work is important. As Hall told me: “We are looking at doing collaborative research with industry so we can get the best answers at the end of the day, to either support or challenge policies.”

As we’ve noted before, there’s a degree of mistrust and misunderstanding between IP lawyers and economists, which probably won’t be ameliorated by the recent article attacking patents in The Economist newspaper. This is partly inevitable, as lawyers and economists are in different roles, have different backgrounds and bring different perspectives. Moreover, as Hall says, fundamentally they have a different understanding of what constitutes “evidence”.

I don’t doubt the challenge of compiling “evidence” on issues affecting IP rights: you’re dealing with concepts that are intangible, where value is often measured in the long-term, and where many metrics simply cannot be measured (sometimes because the relevant activities are illegal).

Those arguing for or against particular policies (whether in government or the private sector) therefore need to work harder, and cooperate where appropriate, to show the benefit or harm caused, in order that legislators can make properly informed decisions. That means not just asserting positions, but citing data and case studies to support them.

Speaking in Parliament on Monday the UK IP minister Baroness Neville-Rolfe said: “We are trying to be proactive with our paper on the digital single market and not just play catch-up … I am actively engaged in the discussions in Brussels and look forward to reporting on the outcome in due course.”

Hopefully that active engagement will include presenting credible and persuasive evidence whenever possible.

more from across site and SHARED ros bottom lb

More from across our site

In other news, Ericsson sought a declaratory judgment against Acer and Netflix filed a cease-and-desist letter against ByteDance over AI misuse
As trade secret filings rise due to AI development and economic espionage concerns, firms are relying on proactive counselling to help clients navigate disputes
IP firm leaders share why they remain positive in the face of falling patent applications from US filers, and how they are meeting a rising demand from China
The power of DEI to swing IP pitches is welcome, but why does it have to be left so late?
Mathew Lucas has joined Pearce IP after spending more than 25 years at Qantm IP-owned firm Davies Collison Cave
Exclusive survey data reveals a generally lax in-house attitude towards DEI, but pitches have been known to turn on a final diversity question
Managing IP will host a ceremony in London on May 1 to reveal the winners
Abigail Wise shares her unusual pathway into the profession, from failing A-levels to becoming Lewis Silkin’s first female IP partner
There are some impressive AI tools available for trademark lawyers, but law firm leaders say humans can still outthink the bots
Lawyers at Simmons & Simmons look ahead to a UK Supreme Court hearing in which the court will consider whether English courts can determine FRAND terms when the licence is offered by an intermediary rather than an SEP owner
Gift this article