23 March 2017

De-extinction

'Spending limited resources on de-extinction could lead to net biodiversity loss' by Joseph R. Bennett, Richard F. Maloney, Tammy E. Steeves, James Brazill-Boast, Hugh P. Possingham and Philip J. Seddon in (2017) 1 Nature Ecology & Evolution 0053 comments
There is contentious debate surrounding the merits of de-extinction as a biodiversity conservation tool. Here, we use extant analogues to predict conservation actions for potential de-extinction candidate species from New Zealand and the Australian state of New South Wales, and use a prioritization protocol to predict the impacts of reintroducing and maintaining populations of these species on conservation of extant threatened species. Even using the optimistic assumptions that resurrection of species is externally sponsored, and that actions for resurrected species can share costs with extant analogue species, public funding for conservation of resurrected species would lead to fewer extant species that could be conserved, suggesting net biodiversity loss. If full costs of establishment and maintenance for resurrected species populations were publicly funded, there could be substantial sacrifices in extant species conservation. If conservation of resurrected species populations could be fully externally sponsored, there could be benefits to extant threatened species. However, such benefits would be outweighed by opportunity costs, assuming such discretionary money could directly fund conservation of extant species. Potential sacrifices in conservation of extant species should be a crucial consideration in deciding whether to invest in de-extinction or focus our efforts on extant species.
Technological advances are reducing the barriers to resurrecting extinct species or their close genetic proxies, allowing de-extinction to be considered as a biodiversity conservation tool. Arguments in favour of de-extinction include necessity, driven by the rapid rate of species and habitat loss, an ethical duty to redress past mistakes, as well as potential technological and ecological knowledge that could stem from de-extinction programmes. Counter-arguments include high risk of failure due to difficulties of cloning for some species, technical risks inherent in re-introductions , loss of culture in resurrected animal species, and lack of remaining habitat for some species, as well as negative consequences for extant species, including reduced incentive for traditional conservation, and ecological impacts of introducing long-absent or genetically modified species.
The relative cost versus benefit for biodiversity is fundamental to the debate surrounding de-extinction. Assuming species are resurrected to be released into former habitats, the cost of de-extinction includes the process of producing initial founder populations, translocating individuals, then monitoring and managing new wild populations. If conservation funds are re-directed from extant to resurrected species, there is risk of perverse outcomes whereby net biodiversity might decrease as a result of de-extinction. Although private agencies might fund the resurrection of extinct species out of technical or philanthropic interest, the subsequent ongoing management of such species (many of which would face the same threats that made them extinct) would fall on government agencies, as commonly occurs with extant threatened species. Alternatively, if private agencies are willing to provide new funding for post de-extinction management, there could be additional benefits to species sharing habitats or threats.
Here, we test the potential impact of establishing and sustaining wild populations of resurrected extinct species (or proxies of such species) on the conservation of extant species. Specifically, we use long-term conservation programmes for extant analogue species in New Zealand (NZ) and the Australian state of New South Wales (NSW), to infer potential conservation actions for resurrected species, and predict the impact of resurrected species programmes on conservation of extant species. We use these datasets because they contain detailed prescriptions and costs of actions designed to achieve population recovery for most of the extant threatened species requiring specific management actions in either jurisdiction. We estimate the net number of extant species that can be conserved, using the following scenarios:
(1) establishment and maintenance of resurrected species become the burden of government conservation programmes, and
(2) establishment and maintenance of resurrected species populations are funded externally using non-public resources.
In Scenario 1, the use of government resources on resurrected species results in less funding for extant species programmes, but provides potential benefits for species that share actions with resurrected species. In Scenario 2, there are also potential benefits to extant species conservation programmes through shared conservation actions. However, there are potential opportunity costs, if private agencies use resources they could otherwise have used on conservation of extant species. Our analysis assumes that species would be resurrected to be re-introduced into their former habitats, rather than for other potential reasons, such as research or public display.

22 March 2017

Cadavers

The Criminal Law Amendment Bill 2016 (Qld), passed today, amends the Queensland Criminal Code to increase the maximum penalty for the section 236(b) offence of misconduct with regard to corpses; and amends the Penalties and Sentences Act 1992 (Qld) to add the section 236(b) offence to the serious violent offences schedule.

The Explanatory Memo for the Bill states
The proposed amendment potentially impacts on the rights and liberties of individuals by imposing a higher maximum penalty for the offence and therefore exposes an offender to greater punishment than was authorised by the former law. The amendment is justified to appropriately reflect the seriousness of the offence and the community's abhorrence of such conduct. The amendment operates prospectively and will only apply to offenders who commit the offence on, or after, the date upon which the amendments commence.

Panics

The Queensland Parliament has belatedly addressed the so-called 'homosexual panic defence', passing the Criminal Law Amendment Bill 2016 (Qld).

The Explanatory Memo for the Bill states
Policy objectives and the reasons for them
The objectives of the Criminal Law Amendment Bill 2016 are to:
  • ensure that a person who commits murder cannot rely on an unwanted sexual advance as a basis for the partial defence of provocation which, if successfully raised, reduces murder to manslaughter; and 
  • make a number of miscellaneous criminal law-related amendments, arising from the lapsed Justice and Other Legislation Amendment Bill 2014 and from stakeholder consultation, to improve the operation and delivery of Queensland's criminal and related laws. 
Exclusion of unwanted sexual advance as basis for defence of killing on provocation
Section 304 (Killing on provocation) of the Criminal Code provides the partial defence of provocation which, if successfully raised, reduces the criminal responsibility of the accused from murder to manslaughter. The offence of murder carries mandatory life imprisonment, whereas the offence of manslaughter carries a maximum penalty of life imprisonment.  
In April 2011, section 304 was amended to address its perceived bias and flaws following recommendations of the Queensland Law Reform Commission (QLRC) contained in its 2008 report, A review of the excuse of accident and the defence of provocation. While not specifically dealing with the issue of an unwanted sexual advance, the 2011 amendment to exclude 'words alone' applies to a sexual proposition, unaccompanied by physical contact. Further, the 2011 amendments reversed the onus of proof to a defendant. However, the partial defence of provocation continued to be criticised on the basis that it could be relied upon by a man who has killed in response to an unwanted homosexual advance from the deceased.  
In November 2011, under the former Labor Government, an expert committee (the Committee) was tasked with reviewing section 304 regarding its application to an unwanted homosexual advance. The Committee was chaired by the Honourable John Jerrard, former judge of the Queensland Court of Appeal (the Chair). The Committee was equally divided about an amendment to section 304 on this matter; however ultimately the Chair recommended an amendment to exclude an unwanted sexual advance from the ambit of the partial defence, other than in circumstances of an exceptional character. The report records the Chair's part reasoning of "the goal of having a Criminal Code which does not condone or encourage violence against the Lesbian, Gay, Bisexual, Trans, Intersex (LGBTI) community" as being persuasive in supporting the amendment.  
The Chair also recommended amending the existing provisos in section 304 of 'circumstances of a most extreme and exceptional character' to omit the requirement that the circumstances be of 'a most extreme' character; to remove potential ambiguity and given that such an amendment would not have the effect of lowering the threshold.  
While the former Labor Government announced its intention to amend section 304 to give effect to the Chair's recommendation, the ensuing change of government in 2012 meant the proposed amendments were not progressed.  
Achievement of policy objectives  
Exclusion of unwanted sexual advance as basis for defence of killing on provocation  
The Bill amends section 304 (Killing on provocation) of the Criminal Code to exclude an unwanted sexual advance, other than in circumstances of an exceptional character, from the ambit of the partial defence.  ... 
Clause 10 - amendment to Criminal Code to exclude an unwanted sexual advance from being able to establish a partial defence of provocation in the case of murder
The proposed amendment to section 304 (Killing on provocation) of the Criminal Code to restrict the scope of the partial defence of provocation from applying, other than in circumstances of an exceptional character, if the sudden provocation is based on an unwanted sexual advance to the person has the potential to significantly affect the rights and liberties of individuals. This is particularly so given the defence operates to reduce what would otherwise be murder to manslaughter; and the penalty for murder is mandatory life imprisonment. The proposed amendment reflects changes in community expectations that such conduct should not be able to establish a partial defence of provocation to murder, i.e. where the defendant has killed with murderous intent. However, the proposed amendment also includes the operation of the proviso "other than in circumstances of an exceptional character" to guard against unjust outcomes as it is impossible to predict the factually dynamic circumstances that may arise in homicide cases. 
 The Bill provides for technical or consequential amendments to Queensland criminal law.
Bail Act 1980
  • ‚to encourage police to exercise their discretion with regard to bail where a person cannot be taken promptly before a court; and ï‚· to clarify the process on forfeiture of cash bail to ensure consistency in approach.  
Criminal Code
  • to create an exception to section 89 (Public officers interested in contracts) for public officers who acquire or hold a private interest made on account of their employment, having first disclosed to, and obtained the authorisation of, the chief executive of the relevant department. The amendment will address ambiguity as to whether section 89, in its current form, prevents departments from authorising public service officers to provide services in their private capacity; such authorisation is often necessary in rural and remote areas; and 
  • to increase the penalty for the offence of misconduct with regard to corpses (in section 236(b) Criminal Code) from two years imprisonment to five years imprisonment.  
Criminal Proceeds Confiscations Act 2002
  • to ensure all contraventions of restraining orders and forfeiture orders made under the Criminal Proceeds Confiscations Act 2002 (CPCA) are prohibited and appropriately sanctioned; 
  • to allow voluntary provision of information by financial institutions to the Crime and Corruption Commission with respect to the Serious Drug Offender Confiscation Order Scheme; 
  • to clarify the original intention with respect to section 93ZZB (Making of serious drug offender confiscation order); and 
  • to amend the definition of 'applicant'.    
  • to enable the Director to delegate their functions and powers to an appropriately qualified person.  
Drugs Misuse Act 1986
  • to update the evidentiary provision providing for a drug analyst's certificate, to reflect current scientific and operational practices of analysis and remove any uncertainty about the admissibility of certificates issued under the section.  
Evidence Act 1977
  • to ensure that in proceedings other than committal hearings, unless a court otherwise orders, a party intending to rely on a properly disclosed DNA evidentiary certificate is only required to call the analyst who signed it if another party gives the requisite notice; 
  • ‚· to permit a court to order that the usable soundtrack of a videorecording (pre-recorded evidence) may be played at a proceeding in certain circumstances; 
  • to exclude the public from a courtroom while the pre-recorded evidence of an affected child witness or special witness is being played; 
  • · to allow for the destruction of certain recordings held by courts in accordance with relevant practice directions; and 
  • to make technical amendments to provisions relating to the pre-recording of evidence to reflect contemporary court practices.  
Jury Act 1995
  • to modernise a court's ability to use technology in jury selection processes.  
Justices Act 1886
  • to insert an authority to allow a Magistrate to order the joinder of trials; 
  • ‚·to allow for admissions of fact in summary trials for simple offences or breaches of duty; 
  • to allow for registry committals for legally represented defendants who are remanded in custody; and 
  • to enable a defendant to enter a plea in bulk in a Magistrates Court (also involves amendment to the Criminal Code).  
Penalties and Sentences Act 1992
  • to add the offence in section 236(b) (Misconduct with regard to corpses) of the Criminal Code to the serious violent offences schedule; 
  • to allow the Police Commissioner to issue a pre-sentence custody certificate in certain circumstances; and 
  • to provide a mechanism to return offenders sentenced to a recognisance order who fail to properly enter into the recognisance back to the court, and allow for their re- sentencing in the Court's discretion.  
Recording of Evidence Act 1962
  • to permit the destruction of recordings of Magistrates Court proceedings that are authorised by the archivist.

20 March 2017

Offshoring

Should Australian government agencies be taking data collection outside the ambit of the Privacy Act 1988 (Cth)?

That question is provoked by today's email from the Therapeutic Goods Administration, which reads
To provide you a better subscription service, we are transitioning to a new online software to manage our email lists (ActiveCampaign). ActiveCampaign will make it easier for us to provide you with better designed, timely and targeted information.
Changes to privacy notice
ActiveCampaign is based in the United States of America (USA), so your personal information (name and email address) will be stored on servers outside of Australia.
Unless you opt-out, you:
  • Consent to your personal information being collected, used, disclosed and stored as set out in ActiveCampaign’s Privacy Policy and agree to abide by ActiveCampaign’s Terms of Use. 
  • Acknowledge that this service utilises ActiveCampaign’s platform, which is located in the USA and relevant legislation of the USA will apply. 
  • Acknowledge Australian Privacy Principle 8.1 contained in Schedule 1 of the Privacy Act will not apply. 
  • Acknowledge that ActiveCampaign is not subject to the Privacy Act 1988 (Cth) and in the event of any privacy breaches by Active Campaign you would not be able to seek redress against ActiveCampaign under the Privacy Act 1988 (Cth) but would need to seek redress under the laws of the USA.
Legal but not admirable.

Opting-out means no longer receiving TGA updates.

17 March 2017

Money Laundering

AUSTRAC has announced a $45 million civil penalty against Tabcorp, promoted as "the highest ever civil penalty in corporate Australian history".

The penalty relates tonon-compliance with the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), with Tabcorp being held to have contravened the AML/CTF Act on 108 occasions over a period of more than five years.

Perram J found that Tabcorp failed to:
  • have a compliant AML/CTF program for over 3 years to manage the risks of money laundering and terrorism financing. 
  • give AUSTRAC reports about suspicious matters on time or at all on 105 occasions. Tabcorp has admitted that these suspicions related to unlawful activity including money laundering and credit card fraud. 
  • Identify a customer who collected $100,000 in winnings. 
  • Enrol with AUSTRAC on time. 
AUSTRAC comments
Tabcorp admitted that it had insufficient processes for consistent management oversight, assurance and operational execution of its AML/CTF program. Its AML/CTF function was under-resourced, and Tabcorp’s senior management did not regularly receive reports in relation to AML/CTF compliance.
Further
In our view, Tabcorp had a corporate culture indifferent to meaningful AML/CTF compliance and risk mitigation until we intervened ... Boards and senior management across all industries should take note to ensure that they are fully informed of their AML/CTF compliance.
 Such contraventions are not to be taken lightly and this unprecedented civil penalty highlights AUSTRAC’s resolve to take enforcement action against reporting entities that engage in significant, extensive and systemic non-compliance.
AUSTRAC indicates that
The financial consequences of the proceedings for Tabcorp will amount to more than $90 million once AUSTRAC’s agreed court costs and Tabcorp’s disclosed defence costs are factored in.
Tabcorp is reported to have agreed to pay the penalty (as 'recognised costs' in its corporate financial statement) on the condition that AUSTRAC withdraws any further allegations of non-compliance, presumably out of concern that derail the $11 billion merger with competitor Tatts Group.

A Tabcorp statement notes
Tabcorp acknowledges that there were a number of deficiencies in its former AML/CTF program, which resulted in a serious contravention of the AML/CTF legislation.

16 March 2017

Gender Identity Documents

'Identity Crisis: The Limitations of Expanding Government Recognition of Gender Identity and the Possibility of Genderless Identity Documents' by Anna James (AJ) Neuman Wipfler in (2016) 39 Harvard Journal of Law and Gender 491 comments
Trans rights advocates and allies are celebrating as governments around the world relax their standards for obtaining a particular sex designation and expand the available options for gender markers appearing on identity documents (IDs). While this increasing flexibility and diversity will improve the daily lives of countless trans and intersex people, it also raises the question of why government-issued identity documents designate gender at all. This question is particularly pressing for gender nonconforming people and nonbinary people for whom the compulsory inclusion of any gender marker may be especially harmful. 
As anatomy and identity become less presumptively linked and governments begin to acknowledge the complexity of gender, various countries have adopted a range of new approaches to sex designation. Many of the burgeoning solutions provide immediate, much-needed relief for binary transgender people who identify as male or female. Advocates have rightly prioritized gaining access to gender-affirming ID over abolishing gender from government ID in a world where gender recognition is still critical for survival. However, these approaches also illustrate how the state’s increasing respect for an individual’s gender identity and openness in recognizing more than two sexes simultaneously results in heightened anxiety over accuracy and security. The increased focus on accurately designating gender identity on government IDs is harmful to gender variant people overall and re-entrenches the primacy of fixed and binary gender. In supporting the state’s quest to “get it right,” advocates reinforce its hold over an aspect of identity that should belong only to the individual. 
This Article describes the sex designation policies of a number of international jurisdictions, arguing that each of them falls short by making such designations compulsory, and positing that even making sex designations optional carries a price. Specifically, it highlights New York City’s decision, launched at the beginning of 2015, to make sex an optional field on its new municipal IDs. The Article then identifies U.S. birth certificates as a strategic place to start the process of removing sex from government ID, based on their form, history, and use. Ultimately, the Article concludes that, so long as such documents include a sex designation field, new and seemingly progressive government policies of gender inclusivity harmfully reify sex classification. Therefore, it is time to envision genderless ID.

UK Trade Mark Analytics

A fascinating number-crunching report for the UK government on that nation's demand for trade marks offers a perspective for Australian intellectual property students.

UK Trade Mark Demand: An Analysis states
The Intellectual Property Office (IPO), an executive agency sponsored by the Department for Business, Energy and Industrial Strategy (BEIS), is the UK body responsible for registering trade marks (TMs), patents, designs and copyrights. Registration helps firms, designers and inventors to protect their intellectual property from unauthorised use by others and facilitates trade in these rights. A trade mark can be anything that defines a brand, for example words, sounds, logos, colours or a combination of all of these.
Faced with a very high increase in trade mark applications, the IPO has identified the need to forecast future trade mark applications to plan resource allocations. This report presents forecast results for 2017 and describes the approaches used to produce the forecasts. A panel dataset based on individual trade mark filers is used to forecast the number of UK domestic trade marks filed with the IPO each year. International registrations under the Madrid Protocol have not been considered. The estimation uses the data in panel form, with the cross-sectional element focusing on the owner type (individuals, companies etc.). The forecasting separately models new applications for trade marks and the renewal of existing trade marks. For the renewals modelling, a key predictor is – unsurprisingly – the number of trade marks that are up for renewal. The preferred model specifications make the following predictions for future trade mark filings: ...
The “preferred model” was selected from six alternative specifications for new applications for trade marks and three models for renewals. The specifications differ due to the different segments modelled and variables used. The criteria used to select the model were goodness- of-fit, the performance of the model when used for recent years, and a practical consideration: the number of future years that could be forecast using the model.
Previous work has largely been based on the data held on the trade mark register. While having a long time-series and allowing individual owners to be identified, there is very limited information about the owner of marks. This study has firstly identified the type of owner. For companies, it has then linked the trade marks to data about the company owning the mark. Since 2011, annual growth in the number of trade mark filings has been consistently above ten per cent, a level only seen once in the previous six decades (the 1980s). Most growth is derived from companies, though until the 1990s and the introduction of the European Union Trade Mark (EUTM), an important driver was also filings from foreign entities. Filings by individuals have also begun to contribute to growth in recent years.
The modelling includes looking at the impact of the EUTM on UK IPO filings. Results indicate that the introduction was associated with a fall in new UK trade mark applications each year as foreign businesses filed at a European level rather than in individual member states. A second policy driver is the extent to which recent simplification of the application process has encouraged trade marking. The evidence here is mixed as it is difficult to distinguish the effects of IPO policy from other drivers.
The report is structured thus
Chapter 1 reviews the literature. There is literature on intellectual property rights and their use by individuals and businesses. The focus is usually on patenting and on the role of intellectual property in productivity and innovation. However, researchers have also considered trade marks, looking at both the effects of trade marking and the drivers for registering a mark. Regarding forecasting the number of new trade mark registrations, the literature is more limited. A set of approaches have been developed for patents and these are beginning to be used to analyse trade marking.
The underlying data about each mark, derived from the IPO’s registration records, is described in chapter 2. The data comes from the live register of marks and the chapter reports the modelling of a history for each mark from its initial registration through all subsequent renewals. A key part of this study is linking each trade mark to information about the owner and the chapter describes this work. Owners are firstly categorised, with most identified as businesses or individuals. For businesses, steps were taken to link trade mark owners to a wider set of data about the business.
Chapter 3 describes recent trends in UK trade marking. There has been a growth in the number of new registrations in recent years. Chapter 4 describes the forecasting models used to predict new trade mark filings and renewals. The number of new applications and renewals were modelled separately because the two types of transactions are quite different, which is also borne out in the results.
The modelling finds that the number of new filings is quite persistent, in that last year’s activity determines this year’s to a significant degree. This finding is similar to other comparable studies and, like other studies, the modelling focuses on the annual change in activity. Macroeconomic variables, such as GDP and investment, are used to explain the change in activity and chapter 4 indicates the results of the alternative models. For renewals, the number of trade marks that are due for renewal each year is a predictor of the actual renewal activity that year.
Chapter 5 looks at the evidence on two policy areas: the introduction of the EUTM in 1996 and recent IPO policies to encourage trade marking. It also compares the findings in this report to those from a similar project commissioned by the EU IPO on trade mark and patent filings in Spain.
The authors conclude in 'Discussion and Policy Outlook' -
The previous chapter has described the findings to support IPO in its operational work. This chapter looks at the evidence on two policy areas. Firstly, the adoption of the EUTM in the 1990s and its impact on UK IPO filings provides evidence about the use of the Europe-wide mark. It indicates that the introduction was associated with a reduction of the growth rate of trade mark filings in the UK each year by around 1,500. A second policy driver is the extent to which recent simplification of the application process has encouraged trade marking. The evidence here is mixed as it is difficult to distinguish the effects of IPO policy from other drivers.
Since the UK referendum to leave the European Union, there is interest in forecasting the likely effect of different models of trade mark co-ordination between the UK and the EU. The chapter also looks at whether particular IPO policies can be forecast using the modelling here. The chapter ends on some of the possible next steps in this area of work, noting the context of the current study.
Effect of the introduction of the EU trade mark
In 1996, the European Union-wide Community Trade Mark was introduced allowing filers to receive a trade mark valid across the single market. The EU Trade Mark (EUTM) – as renamed in March 2016 – is valid in the UK. The introduction meant that businesses and individuals could register a mark at the European Office for the Harmonization of the Internal Market (now the EU IPO) and many businesses, especially those from outside the UK, began to use the service instead of registering in the UK. ...
From the regression analysis, the extent of this shift in the 1990s is discernible, though there is a mixed picture provided by the different models. Table 14 indicates the average number of trade marks that would have been registered additionally in the UK had the EUTM not been available. The table gives the marginal as well as cumulative effect on total UK applications as well as on foreign owners filing in the UK. The marginal effect is the reduction on the annual change in filings.
Adding these annual reductions or increases over the years between 1996 and 2014, the effects become sizable. It is estimated that filings from foreign owners in 2014 were reduced by between 8,000 and 21,000 due to the EUTM. The effect on total filings is also estimated to be negative but smaller. This might reflect an overall positive trend in the data. Estimates are derived by multiplying the number of segments by the estimated coefficient on the EU dummy for total UK applications and applications from foreign owners only.
Since the UK referendum to leave the European Union, there is interest in forecasting the likely effect of different models of trade mark co-ordination between the UK and the EU. The previous paragraphs estimate the number of trade marks that are registered in EU IPO that would have registered in the UK had EUTM not been developed. The cumulative estimate would represent trade marks on the EU register that may need the IP protection that they currently have in the UK were policy to return to the pre-EUTM position. However, because trade marking has seen such strong growth in the past decades, it is likely that this is an under-estimate.
A second aspect to consider is the annual additional new applications that might arise. Overall, there were 108,000 direct filings for trade marks at the EU IPO in 2015. For those trade mark owners who also require IP protection in the UK, it could become necessary to file for a separate trade mark in the UK.
It is probable that only a portion of the filings at EU IPO would also consider a UK filing after any change in the UK’s position. An indication of the lower bound for the EU IPO marks that may require a UK registration is the 12,524 direct filings from the UK at the EU IPO in 2015 (Statistics of European Union Trade Marks, 2016). If all of these were to additionally file for protection in the UK, should the EUTM no longer cover the UK, this would represent an additional increase in filings of 20 per cent (based on estimated UK domestic filings in 2016 of 61,211). Further, it is far larger than the marginal estimate given in Table 14, suggesting that the forecast modelling based on filings at the time when the EU trade mark was introduced, and overall filings were much lower, may underestimate the effect of the EU trade mark. However, it is likely that some of these filers explicitly sought to protect their IP in the European Union, because they do not require protection in the UK.
Policies to simplify trade mark application process
One of the notable features in recent years has been the steep rise in the number of small businesses that have sought trade mark protection for the first time. The IPO has also set in place measures to simplify the application and so reduce the cost of registering a mark. The opportunities have been taken by individual small businesses and individuals and by intermediaries seeking to support businesses to register their trade marks.
Estimating any impact of specific IPO policies has proved difficult, primarily because it is difficult to separate what has driven the recent rise of trade marking. It seems likely that the cost of trade marking has been reduced because of process changes, marketing of the ease and value of a mark and the introduction of registration services online. Equally, however, the UK economy has seen a large growth in the number of start-ups and SMEs, alongside a rise in self-employment. The evidence in this report suggests that new filers have been a significant driver of the recent growth of trade marks.
For estimation, the problem is that both sets of drivers have occurred at around the same time. The improvements in supplying the marks occurs at about the same time as the increased numbers of new businesses. The forecasting has found it difficult to discern the different drivers separately and it is very likely that both have been important.
Trade mark forecasting context and next steps
Forecasting the likely future level of trade mark applications is important for IPO to plan resources. This work has developed current modelling approaches to improve such forecasts. The most recent similar work on trade marking – the EU IPO has commissioned a forecasting model for trade marks (Hidalgo and Gabaly, 2012, 2013) – was discussed earlier in the report. These studies firstly sought to model trade marking purely using register information and at quite an aggregate level. In Hidalgo and Gabaly (2013), macroeconomic variables were added. There are three main differences between the approach used in these studies from the current work. First, this work splits trade mark filers into different segments, whereas Hidalgo and Gabaly looked at trade mark filings in the aggregate. This allows data about the different segments to be integrated into the modelling. Second, the EU IPO studies estimated the level of trade mark filings, while here the change in filings is estimated. Both changes appear to improve the modelling. Further, the modelling here has been underpinned by a significant improvement to the underlying datasets, linking the owner of a trade mark to data about the type of owner.
This linking exercise is a resource intensive exercise. It produces additional variables to model trade marking activity, by identifying characteristics of the trade mark owner from business databases. Some of the additional variables – such as owner type – prove useful in segmenting the modelling. However, it is apparent that the variables derived using business characteristics do not greatly improve the forecasts. The preferred models are mainly auto- regressive with policy dummies.
Continuing to use simple, time-series approaches would therefore be justified for activity modelling to support the resource planning of the IPO. However, one of the key dimensions for future work is to be able to represent policy and intellectual property related policy specifically in the models. Such interventions are occurring at sector and business type level, so the sophistication of the underlying datasets used in this study may be warranted if these interventions shape the future registration of trade marks.
An area of the modelling that may need developing is the representation of the various international routes to co-ordinate the trade mark application. This work has focused on the UK register and applications and renewals to that register. The modelling here does begin to lay the groundwork for going further. Where an entity is the owners of several UK trade marks, this is now represented in the data. It then makes it possible to link across different registers by the owner.