You must be able to enforce the rights you have, so courts and legal processes must be affordable.
As it stands, the law is weak in its protection of creators’ rights.
In theory, the law provides protection for your work as a creator, considered as property.
In theory, the law provides that those who use your work without permission can be jailed. But we can find no examples of anyone being prosecuted under this bit of the Copyright, Design and Patents Act.
In practice, if someone or some company uses your work to profit at your expense, or uses it without crediting you, or uses it in a place you wouldn’t be seen dead in, your only legal remedy is to sue them. But the law currently says that you can only sue them for the value of the work, and this raises a major problem for the individual creator acting alone.
It is sometimes argued that creative workers are a specially privileged group who do not deserve any special protection from the law. For example, you see stories about huge advances to book authors – but they are a tiny minority – and many of the stories are based on the authors’ agents’ exaggerations anyway. You may hear about musicians selling shares in their future output for large sums but they are a minuscule exception.
The truth is that the majority of creators license large numbers of small chunks of work, each for relatively small sums of money. When there is abuse, most often, what has been stolen is the income from one article, or one song, or one illustration. And what is the cash value of a missing credit, anyway?
The civil courts, in which you would sue if you could, sensibly apply a rule of proportionality: it would in general be daft to spend £20,000 or even £2000 in lawyers’ fees and court costs to recover a £200 debt. That is why the Small Claims Courts were set up. But the Small Claims Courts in England and Wales no longer deal with copyright cases, in the belief that they are 'too complicated' for junior judges.
So a creator with little means risks being ordered to pay substantial costs, win or lose. In a case heard recently in the Patents County Court, an NUJ member who brought a claim against a well-known publisher, representing herself in the County Court ‘multi track’, succeeded in her claim on liability and was awarded £400 damages. She was, however, also ordered to pay the defendant publisher’s legal costs of £2000 on the basis that the action she had taken was disproportionate to her claim.
This needs to be fixed. You as a creator must be able to go after those who abuse your work. There is no point having laws unless everyone has access to justice.
6: You must be able to enforce rights: what is needed