PCC Small claims track call for evidence
The Association of Photographers Limited (AOP) is a not-for-profit professional trade association, founded in 1968. Its aims are to promote and protect the worth, credibility and standing of its members and to vigorously defend and lobby for the interests and rights of all photographers in the photographic profession.
With around 1,600 members, the AOP represents professional photographers, assistants, agents and students. Members have a wide client base, ranging from individual clients in the corporate sector to design groups, publishing houses, music publishers and advertising agencies. Their work is published worldwide in magazines, newspapers, books and advertising campaigns and many sell their images as Fine Art through galleries, both in traditional spaces and online.
The AOP is a member of the British Copyright Council, British Photographic Council, Pyramide Europe (EEIG) and AOP members are represented by the Design and Artists Copyright Society (DACS) for collective licensing.
All our photographer and assistant members are SMEs, some work in partnership with another photographer but the vast majority are individuals either working for their own limited company or as sole traders.
4.1a Do you agree that the small claims track for IP claims should work in largely the same as the general small claims track?
The small claims track has served many of our members well for unpaid debts and we would agree that this is the best method to follow for IP claims. Whilst any court proceeding can appear complicated to the individual, many have successfully negotiated the system with help from ourselves.
We are concerned that it is proposed (3.8) that the claimant will need to request an allocation to the small claims track. Should the defendant disagree, this may result in financial pressure being put on the claimant. This would defeat the purpose of having a small claims track. We would suggest that, should there be a dispute, the complexities of the case be examined carefully with a particular eye to the possibility of the defendant attempting to ‘bully’ the claimant.
We understand that it is not intended for an allocation hearing in most cases (3.10). We would ask that claimants be given careful and easily understood directions as to what they need to produce, and the manner in which it should be presented to ensure their case is effective. Claimants will, in the majority, be acting for themselves and many will not have an understanding of procedures, particularly where damages are to be calculated.
Mediation would be a useful addition to the PCC small claims track. However, the mediators would need to be well versed in copyright law and preferably knowledgeable in the particular creator area.
4.1b Do you agree with the type of IP claims that can be brought before the small claims track?
We are concerned by the phrase “direct copying” (3.5) in relation to low value copyright cases. Visual arts cases are often different from other copyright infringement claims. “Direct copying” would only be the case if an image was physically reproduced, and would not include cases where it was claimed the image had been imitated, as in the recent PCC case of Temple Island Collections Ltd v New English Teas Ltd and Another, but the value of the claim was still low.
4.1c Would you find increasing the upper damages limit for the small claims track from £5,000 to be beneficial?
We believe the current small claims track upper limit of £5,000 should be reviewed for the PCC small claims track and a limit of £10,000 be considered, given that there will be no fast track option.
4.1d Taking into account the rules governing interim injunctions, do you consider that the small claims track for IP claims should provide for these?
In our view interim injunctions are not an essential element of the small claims track. They tend to involve a balancing of complex issues, they involve claimants in potential liabilities which they may not fully understand if they are not legally represented, and most small claims are in any event primarily financial by nature.
4.1e Do you think the Patents County Court should be renamed to better reflect the range of intellectual property cases it considers?
It is essential that the PCC be renamed not only because it already deals with more than Patent cases, but as litigants in small claims track cases are more likely to be individuals, they need clear guidance as to the right court for their case. Intellectual Property County Court seems to us to be the most appropriate name.
104 replies were received to a survey in 2012, on copyright infringement cases during the past 2 years and valued under £5000.
Of 265 infringements under £2500 not pursued 55.6% were, amongst other factors, mainly due to being too expensive
Of 67 infringements between £2500 & £5000 not pursued 66.7% were, amongst other factors, mainly due to being too expensive.
Executive Director Business & Legal Affairs