Who Needs a Copyright Small Claims Court? Evidence from the U.K.'s IP Enterprise Court

Abstract

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.

Keywords: copyright, small claims court, CASE Act, IP Enterprise Court, IPEC, small claims track, Copyright Claims Board

JEL Classification: O34, K41