Multi-national research conglomerate Nielsen has been accused of breaching intellectual property over a major banking customer satisfaction survey, with the man behind the claim telling Crikey that Nielsen’s conduct has caused him financial and emotional pain.

David Upton, a former journalist and financial PR consultant, has opened legal proceedings with Nielsen over what he claims has been a breach of contract and copyright, as well as an act of misleading and deceptive conduct from the research company.

The copyright scrap, which Upton is taking to the Federal Court, centres around the Nielsen Financial Services Monitor, formerly the Financial Institution Customer Monitor, a report which delivers customer satisfaction data to the major banks.

Upton says the report didn’t exist until he approached Nielsen in 2003 and it was his involvement that grew the report into a successful entity. The report was his work, he argues, with very little input from Nielsen.

According to the Nielsen website, major financial services clients “rely on the Nielsen Financial Services Monitor for comprehensive reporting on the levels of customer satisfaction”.

Upton says the initial agreement was “on spec” and if it didn’t work he would “walk away after six months”. He ran the project in partnership with Nielsen for six years on an annual pricing agreement, with revenue split 50/50 between both parties.

“I went to them with the idea and all the risk, with the view to putting it together in a partnership with them,” Upton told Crikey. “Then basically, after a few years of success, they decided it wasn’t a partnership anymore.

“They are trying to make this look like I’m a rogue contractor. But it was nothing of the sort. I had the skills and abilities to make it come to something. It was partnership and then it all changed.”

Upton says the partnership went sour when Nielsen sold the report to a bank for half the price of what they had agreed. When he complained, Nielsen told Upton he “didn’t have any say in the price that they were setting” and the agreement fell apart.

In an emailed response to Crikey’s questions, a spokesperson for Nielsen said the company had ended its contractual relationship with Upton and was currently engaged in legal proceedings with him:

“Nielsen is defending the case vigorously and confident of our position. The substantive questions raised by you largely relate to matters which are in dispute in the proceedings and we do not consider it appropriate to respond to them outside of the proceedings.”

Upton isn’t seeking a significant amount from Nielsen, simply “something that’s fair”, but he did say the whole affair had caused him “significant emotional and financial pain”. He says he won’t do business with large corporations again:

“I’ve been surprised at how hard it is to get what your owed, either compensation or recognition,” he said. “I’d say that you just shouldn’t go into business with big companies, no matter how much sense it makes. If you can’t trust them 100%, it’s just not worth it.”

Kim Wetherall, a senior lecturer at the University of Queensland law school who specialises in intellectual property, told Crikey cases like this are very hard to prove because they relied on “intangibles”.

“The law of how much you can copy before it becomes infringement is very hard to ascertain. Copyright is very hard to prove because there is no registration system,” Weatherall explained. “Unlike patents and trademarks, there is no way to stake the boundaries of your claim and register what’s yours.”

Peter Fray

Fetch your first 12 weeks for $12

Here at Crikey, we saw a mighty surge in subscribers throughout 2020. Your support has been nothing short of amazing — we couldn’t have got through this year like no other without you, our readers.

If you haven’t joined us yet, fetch your first 12 weeks for $12 and start 2021 with the journalism you need to navigate whatever lies ahead.

Peter Fray
Editor-in-chief of Crikey