Helmers, Lefouili, Love and McDonagh (2018)
|Helmers, Lefouili, Love and McDonagh (2018)|
|Title:||Who Needs a Copyright Small Claims Court? Evidence from the U.K.'s IP Enterprise Court|
|Author(s):||Christian Helmers, Yassine Lefouili, Brian J. Love, Luke McDonagh|
|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|
|Key Related Studies:|
|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:|
|Cross Country Study?:||No|
|Government or policy study?:||No|
|Time Period(s) of Collection:||
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.