Innovation that happens in an “open” collaborative context – either internally or with external partners – can provide faster, better, more holistic results to accelerate innovation and improve competitive advantage, concludes our new report: Open Innovation: Collaborate to Innovate, based on “innovation” interviews with our clients.

In order to get, and stay, ahead in the market, businesses in every sector are being required to innovate. “Open innovation” has become a ‘catch-all’ term for innovation which reaches out beyond the traditional R&D unit of a business to make use of the broader idea and talent pool of an organisation’s work force or to partner with an external party to assist and accelerate the process – allowing new ideas to be captured from more sources or improving the process of getting ideas put into action.

This sort of collaborative innovation presents exciting opportunities, allows greater access to talent, and promises reduced costs and greater sharing of risk; it often also requires a flow of information and rights into and out of the business. In order to make it flexible and fully collaborative, the traditional rules of engagement around research and development, collaboration, and innovation, will not always apply. Engagement like this can leave a business more vulnerable, its boundaries more permeable and ownership of intellectual property less certain. So how can organisations both deliver and safeguard future value?

Our report combines experience gathered from interviews with clients around the world and in multiple sectors to highlight how businesses are innovating and seeing the significant benefits of open innovation. We examine the process of open/collaborative innovation – both through encouraging internal innovation or collaboration with external partners. The report highlights the legal considerations and practical steps for conquering the challenges that emerge, so that legal teams can adapt to ensure they have the flexibility of process to become enablers of innovation, helping their businesses stay ahead of the curve.

Herbert Smith Freehills Partner and Head of IP, UK, Joel Smith, who, with Australian IP Partner, Rebekah Gay, led on the report, said:

“By sharing these first-hand insights, which will resonate with many organisations, big and small, we hope to provide a clear route map with which to navigate the dynamic and rapidly evolving innovation landscape.”

“More than ever before, intellectual property is core to the value of many businesses. However, the way in which it is used and valued is shifting – it is used to facilitate collaboration through access regimes ranging from licensing to open source platforms, rather than being used to lock others out of the market.”

Joel Smith
Joel Smith
Partner, Head of Intellectual Property, London
+44 20 7466 2331
Rebekah Gay
Rebekah Gay
Partner, Sydney
+61 2 9225 5242
David Coulling
David Coulling
Partner, Head of Digital TMT Sourcing and Data, London
+44 20 7466 2442
Miriam Everett
Miriam Everett
Partner, Head of Data Protection and Privacy, London
+44 20 7466 2378

Political agreement reached on controversial EU Digital Copyright Directive: A fair and balanced result?

Following a turbulent course of lengthy negotiations and delays, political agreement was finally reached by the European Commission, European Parliament and the Council of the EU on the revised proposal of the EU Copyright Directive (the “Directive“) earlier this month. The final consolidated text was made available on 20 February 2019.

The Commission first adopted its proposal for the Directive back in September 2016, as part of its Digital Single Market Strategy. The Directive forms part of a broader initiative to “adapt copyright rules” to ensure they are “fit for a digital era“. The modernisation is long overdue, given the changes which have occurred in the use of material on the internet since its inception, including the explosion of social media.

The Directive is intended to develop a fair and sustainable marketplace for creators, the creative industries and the press; to this end, in the Commission’s press release, Vice-President for the Digital Single Market, Andrus Ansip, referred to the Directive as a “fair and balanced result that is fit for a digital Europe“. The European Parliament’s press release also refers to the Directive re-dressing the balance; ensuring “tech giants” share revenue with “artists and journalists” and also incentivising internet platforms to enter into fair licensing arrangements with rights holders.

The legislation has, however, been the subject of considerable lobbying and public pressure by copyright holders, technology companies and consumer digital rights advocates, which is unsurprising, given the vast array of stakeholder interests at play. In particular it has implications for online platforms and media companies. We set out below further detail around the more contentious provisions, Articles 13 and 11, and discuss the next steps for the legislation. Continue reading

Digital Economy Act 2017: The pick ‘n’ mix assortment of provisions receives Royal Assent

The Digital Economy Act (the “Act“) finally received Royal Assent on 27 April 2017 and the final text has recently been published. First introduced in the House of Commons in July 2016, it has been the subject of much scrutiny and debate by both Houses of Parliament. With the General Election looming, the legislation was passed in a final sweep as part of the so-called “wash up” period before the dissolution of Parliament.

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Creative industries and search engines agree voluntary anti-piracy code

In February 2017, search engines (such as Google and Bing) and representatives of the creative industries agreed a voluntary code of practice to demote copyright infringing website links from the first page of search results for consumers in the UK. The UK Intellectual Property Office, Ofcom and Department for Media, Culture and Sport assisted the agreement.

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ITV & Others v TVCatchup: CJEU rules s.73 CDPA defence not applicable to online streaming of live TV broadcasts

The CJEU has issued its ruling on the latest question referred to it in the long-running dispute between ITV (and others) and TVCatchup, as to whether Article 9 of the InfoSoc Directive permits the UK to retain the defence contained in section 73 of the Copyright, Designs and Patents Act 1988 (the “CDPA“) (which permits retransmission of a broadcast by cable to users in the area to which the original broadcast was made). As such, TVCatchup cannot legally provide live streaming of free-to-air broadcasts via the internet in the UK. The decision confirms the protections afforded to copyright holders and originating broadcasters in the UK.

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Linking to liability? CJEU rules on hyperlinking and copyright infringement

In September 2016, in a further key decision on hyperlinking and copyright, the CJEU held that creating hyperlinks may be a communication to the public and so may amount to copyright infringement, if the creator of the hyperlinks knows or should have known that the material to which they are linking has been posted without the copyright owner’s consent. If hyperlinks are created for financial gain there is a greater duty to check that the material is freely available before creating the link.

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