Sunday, 16 January 2011

Three little pieces

Just because you're small shouldn't
mean you get kicked around
A friend writes to the 1709 Blog with the following little tale of woe, hoping for some advice in return:
"A friend of mine who has a sideline licensing use of her photographs recently came to me with a plea for help. An organisation has used one of her pictures and has refused to agree to, or even acknowledge, her request for her usual fee of around £50. Having sought advice from Own-It she was told that her course of action was to bring a claim for copyright infringement. However, she can only do this in the Patents County Court, and absent a Small Claims procedure for IP disputes (as proposed in the Jackson Report) this will be an expensive option. On her behalf I contacted a specialist IP litigator; they expressed interest and sympathy but noted that their normal costs regime meant that even writing a Cease-and-Desist letter would probably be disproportionately expensive given the low value of the dispute.

Is there any credible route to redress for my friend? It seems manifestly unjust that flagrant copyright infringement should go without remedy, but the current system for IP litigation does (and this is, I know, not news) seem to ignore the small-scale creators who are supposed to be the bedrock of innovation and our creative economy. Are we likely to see reform to address this, and in the mean time is there anything my friend can do that won't involve outlay an order of magnitude larger than the sum she wants to claim?"
All comments are welcome. This blogger wonders whether naming and shaming the organisation concerned via a concerted bit of social media  campaigning might be more effective than anything else -- and a lot more fun.


Meanwhile, in "Sony Asks Court to Remove PlayStation 3 Jailbreak From Net", Wired reports on the tale of  some nifty "jailbreaking" which, it seems, falls foul of the current regime for dealing with software hacking in the United States. This may be one to watch ...


Finally, Barry Sookman's "Copyright law 2010 –the year in review in Canada and around the world" can be accessed here, replete with slides and text. Thanks, Barry!
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6 comments:

  1. Anonymous16 January 2011 at 20:19

    This behaviour used to be regular but now is less common. I suggest the lady sends an invoice for £50 as a standard charge for reproduction of her picture. If it is ignored she can then enter a claim in the Small Claims Court for non-payment; this is not for IP infringement but for an unpaid bill.

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  2. The Bright Spark17 January 2011 at 09:57

    There would be a good argument that the defendant should pay 'additonal damages' (CDPA section 97) to compensate for the fact that she is having to spend such a lot of money to get any redress. That might make it worthwhile. But she'll probably still end up out of pocket.

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  3. Tim Padfield17 January 2011 at 14:00

    It will not help for this case perhaps, but my advice to this rights owner would be to authorise DACS to act for her; it is much more capable of pursuing an infringement than she is on her own.

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  4. Anonymous19 January 2011 at 10:31

    It is not uncommon for larger companies to take this approach because they know that the smaller business cannot afford to enforce their rights. There needs to be a pro bono offering for IP small businesses (such as this rights holder) who can get advice and support where they cannot afford lawyers fees or it would be disproportionate to do so.

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  5. Francis Davey19 January 2011 at 22:29

    The Bar Pro Bono Unit has been known to help in such cases, but they only accept referrals from an agency such as the CAB, and of course they are quite stretched.

    A pro bono offering does seem (to me) like a good idea though. A simple copyright infringement case such as the one Jeremy describes should not be overly onerous and would be an order of magnitude simpler in terms of time and commitment than many cases handled on a regular basis by the Free Representation Unit.

    The main difficulty with any pro bono offering is costs, although with the possibility of awards in favour of the Access to Justice Foundation, at least an individual represented pro bono can make credible costs threats to their opponent, which is new.

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  6. John R walker23 January 2011 at 22:06

    My father was a barrister. These sort of businesses sometimes 'automatically' respond to the rattling of the cage , that a solicitors letter makes.
    Dos she have a friend who might swap a picture for a letter?

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