Don't leave that Space (Oddity): disclaimers and conflicts of interest in expert opinions
Classic post-IP conference entertainment (Disclaimer: Merpel is the one to the left of the DJ) |
Here's Merpel's experience, based on her own observations of a phenomenon that appears to occurring with a (worryingly) increasing frequency in recent times:
"As those who know me are well aware of, I am a constant presence at cocktail receptions, buffets conferences and other cheerful gatherings of IP folk. When there, it is quite common that conversation becomes boring focused on latest studies or expert (often academic) opinions which purport to provide an objective and absolutely scientific perspective on an issue of current concern, especially in what has become an highly contentious area of IP, ie copyright.
In Merpel's experience, however, it would seem that people are either unaware that these studies have been commissioned by some stakeholders [despite the presence of relevant disclaimers, that however sometimes -- and possibly regrettably -- are printed in miniscule type and/or are placed at the very end of these documents, on the assumption that people will actually read that far] or are unable to say whether any of the drafters of opinions released by groups of relatively numerous academics (but not just these) have declared their actual or potential conflict of interest in relation to the matter treated in those enlightening studies.
In other words, there are times when (i) there are no disclaimers or indications of involvement, or (ii) where they exist, disclaimers aren’t sufficiently prominent.
Either way the problem may be that the authority attributed to those studies, which come not just from the expertise but also the DISINTEREST of the author(s), might be inappropriately conferred on them.
Are you sure you didn't forget anything? |
In other words, there are times when (i) there are no disclaimers or indications of involvement, or (ii) where they exist, disclaimers aren’t sufficiently prominent.
Either way the problem may be that the authority attributed to those studies, which come not just from the expertise but also the DISINTEREST of the author(s), might be inappropriately conferred on them.
A first question might be certainly whether this depends on readers who do not pay enough attention to these details or do not actually care about them. Merpel is however inclined to respond in the negative as, she is told, some people get pretty upset that they have not noticed these not-completely-insignificant details before.
(1) Should opinions drafted by groups of academics or practitioners contain a clear statement that says that the study in question has not been "funded by, nor has been instructed by any particular stakeholders" [this phrase appears at the very beginning of the recent Opinion of the European Copyright Society in Case C-466/12 Svensson, on which see here and here] and – especially in the context of pending cases – also that no drafters have an actual or potential conflict of interest, resulting (for instance) from the fact that they have acted or currently act for any of the parties involved in the litigation?
(2) Should disclaimers be made more visible, ie by placing them at the very beginning of these pieces in a pretty visible – and possibly large – font? [A sudden thought: is there something we can learn here from health warnings and tobacco labelling regulations ...?]"
What do readers think? How can these important aspects be improved?