Helmers, Lefouili, Love and McDonagh (2018)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Helmers et al. (2018)
Title: Who Needs a Copyright Small Claims Court? Evidence from the U.K.'s IP Enterprise Court
Author(s): Helmers, C., Lefouili, Y., Love, B. J., McDonagh, L.
Year: 2018
Citation: Helmers, C., Lefouili, Y., Love, B.J., McDonagh, L. Who Needs a Copyright Small Claims Court? Evidence from the U.K.’s IP Enterprise Court. Berkeley Technology Law Journal Commentaries, Forthcoming
Link(s): Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: Analysis was conducted on cases filed within the first fifteen months of the introduction of the IPEC SCT. Of the fifty five copyright cases filed during this time, further details were taken on the nature of the case, success rates, damages granted etc. and quantified.
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • 2012-2013
Funder(s):

Abstract

"Calls for the creation of a "small claims" intellectual property court have arisen periodically in the U.S. since at least the late 1980s. While prior efforts to establish such a court have fizzled, a recent push to establish a small claims tribunal within the U.S. Copyright Office is gaining traction. Legislation introduced in each of the last two congressional terms, known in its present form as the CASE Act of 2017, would create a "Copyright Claims Board" to hear and decide relatively small claims of copyright infringement on an accelerated basis, with streamlined procedures and a cap on recoverable damages. In this Essay, we contribute to the debate surrounding the CASE Act by taking a comparative empirical look at existing small claims procedures that have been available to IP litigants in England and Wales since 2012. We present descriptive statistics on copyright cases litigated in the "Small Claims Track" of the U.K.'s IP Enterprise Court (IPEC-SCT), and compare case filing trends in the IPEC's SCT and pre-existing "Multi-Track." Our findings suggest that the IPEC-SCT largely operates as policymakers intended. Overwhelmingly, the SCT serves the needs of especially small plaintiffs suing to enforce rights in their own creations against defendants engaged in easy-to-prove infringing acts that would not have been worth pursuing before the SCT's creation. However, we also caution that important differences between the IPEC-SCT's procedures and those outlined in the CASE Act make it hard to predict whether the proposed Copyright Claims Board would attract similar types of cases. We recommend that U.S. policymakers amend the CASE Act to both eliminate the availability of statutory damages and lower the damages cap from $30,000 to $15,000 or less. We also encourage Congress to assess whether the proposed tribunal can realistically handle a caseload that, we estimate, could easily reach several hundred claims per year."

Main Results of the Study

• Most cases brought before the IPEC SCT are in regards to copyright law. Most commonly, these claims were filed by individuals, against businesses, and were in regards to unauthorised use of photographs. Damages are mostly sought at or below £2,500, but often settle for less.• Cases filed in the IPEC MT have not been moved to the SCT following its implementation, and cases filed in the MT have not dropped overall. This suggests that had the new SCT system not been introduced that these cases would never have been filed.• Overall, the authors conclude that the implementation of the IPEC small claims track has been successful, and that a similar system would be possible in the US with modification.

Policy Implications as Stated By Author

Based on the evidence of the IPEC SCT, the authors suggest the following modifications to the proposed US Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2017:• Elimination of proposed statutory damages;• Reduction of proposed damages cap from $30,000 to $10,000 - $15,000; and• Increase the number and size of fees associated with the tribunal board based on the level of damages sought. This will have the dual function of raising funds in anticipation of a heavy caseload, and reducing procedural complexity.



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
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Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
Green-tick.png

Datasets

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