What is needed - 6
Legislative reforms will founder if the ability for legal redress remains as it is currently enforced. Very few creators have the funds to be able to take cases of rights infringement to court. Those that do, and win their cases, most often see rights abuse punished with scant penalties. This not only affects the creator; it also puts honest rights exploiters at a competitive disadvantage.
The CRA therefore recommends that the government reviews the methods of enforcement available for IP infringement, including infringement of moral rights.
If the UK is to become “the world’s creative hub”, as Ministers repeatedly propose1, the IP that the UK creates will be one of our most important economic assets. Safeguards, guidelines, and where necessary penalties for action that threatens our creative economy, should reflect the importance of this sector to UK plc. This should also be the case for all abuses of IP which similarly threaten our creative industries.
Do not go directly to jail
The CDPA does not provide for punitive damages that can be awarded to make it worth challenging an infringement of rights. The maximum term for contravention of the terms of the Act is a scale five fine or two years’ imprisonment, irrespective of the scale of the crime – and CRA members know of no instances of these criminal provisions being used to protect individual creators’ rights, or at all, since they were passed in 19882.
In this absence of effective criminal penalties, and in any case to recover lost income, creators have to rely on civil law, and their access to justice by this route is severely impaired.
The CRA recommends that Trading Standards officers, having been given responsibility for dealing with IP infringements, must be fully funded and reinforced to investigate and prosecute them.
Creators must be able to track uses of their work
It is increasingly difficult in the digital marketplace for individual creators – for instance, writers or musicians – to effectively monitor and audit the use of their works on-line. The technical and financial resources required to make regular and effective searches of all media will, in most cases, be beyond their reach.
Furthermore, even if an individual creator discovers infringing activity in relation to their work, the processes for effecting the removal of that work (whether from an on-line source or physical location), or securing adequate recompense for consequent loss or damage, are likely to be too costly to undertake.
The CRA welcomes the government’s proposals to make Internet Service Providers (ISPs) more accountable for rights infringements committed by customers using the ISP’s services. We hope that service providers will engage fully with this process, with creators and rights holders, to find a solution that will allow the growth of the creative sector in the digital age.
For photography, especially online where it is easy to duplicate works, the ability to respond quickly to illegal activity and enforce the law is essential. Otherwise there is a risk that the work will become widely spread throughout the world through the Internet, after which an action against the primary infringer is no longer sufficient.
It must never be cheaper to steal work than to use it legally
In the present situation, even when a court decides that an infringement has been committed, creators are usually awarded only the amount they could have achieved had their work been licensed – there is no punitive element. Licences are not usually expensive because the value of work for publication is usually more transient than in the other areas of intellectual property – for example patents. So, in practice, the cost of a legal challenge of infringements is completely disproportionate to the licence fee and is unlikely to be awarded in full by the court – a considerable disincentive to pursuing infringers.
To remedy this inequitable situation, the costs resulting from litigation should be made proportionate to the damages suffered by the creator. This could be achieved either by steps to reduce the costs to mirror the amount of damages, or by awarding additional damages – a deterrent to others contemplating infringing copyright.
The CRA recommends that, in the case of commissioned works, the statutes should clearly state that, when considering the nature of the contract between commissioner and creator, courts should not imply licences that are not explicit but accept, as a default position, that copyright ownership rests with the author of the work.
County courts, where copyright infringements can be challenged, are usually not familiar with copyright or business practice in creative fields, which often results in unfair judgements. There are some specialist routes open like the Copyright Tribunal but seeking redress through this method is not only expensive and complex but far too slow to be effective against digital proliferation. However, the Patent Court hears some copyright cases and has shown itself to be effective; the knowledge of this court should be extended to other County Courts.
The CRA recommends that the time taken to bring IP cases to court must be reduced, procedures simplified and barriers to individual creators accessing justice removed.
Manifesto: 6: You must be able to enforce rights
1 For example see http://www.culture.gov.uk/what_we_do/Creative_industries/ (accessed 04/03/2010) and the eponymous Green Paper
2 We have since been informed of one case: in October 1991 Barrie Duffey, the then deputy mayor of the London Borough of Tower Hamlets and Liberal election agent, was convicted and fined £200 at Thames Magistrates Court for using a photograph on an election flyer without permission (for a second time, as it happened - the earlier case was dealt with in Small Claims Court). Duffey also had to pay £150 compensation and court costs. See this report at ArtLaw.