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

Berkeley Technology Law Journal Commentaries, Forthcoming

Santa Clara Univ. Legal Studies Research Paper, No. 2018-01

12 Pages Posted: 30 Jan 2018 Last revised: 3 May 2018

See all articles by Christian Helmers

Christian Helmers

Santa Clara University - Leavey School of Business; Universidad Carlos III de Madrid

Yassine Lefouili

University of Toulouse 1 - Toulouse School of Economics (TSE)

Brian J. Love

Santa Clara University School of Law

Luke McDonagh

City University London - The City Law School

Date Written: January 18, 2018

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

Suggested Citation

Helmers, Christian and Lefouili, Yassine and Love, Brian J. and McDonagh, Luke, Who Needs a Copyright Small Claims Court? Evidence from the U.K.'s IP Enterprise Court (January 18, 2018). Berkeley Technology Law Journal Commentaries, Forthcoming; Santa Clara Univ. Legal Studies Research Paper, No. 2018-01. Available at SSRN: https://ssrn.com/abstract=3104940

Christian Helmers

Santa Clara University - Leavey School of Business ( email )

500 El Camino Real
Santa Clara, CA California 95053
United States

Universidad Carlos III de Madrid ( email )

CL. de Madrid 126
Madrid, Madrid 28903
Spain

Yassine Lefouili

University of Toulouse 1 - Toulouse School of Economics (TSE) ( email )

Place Anatole-France
Toulouse Cedex, F-31042
France

Brian J. Love (Contact Author)

Santa Clara University School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

Luke McDonagh

City University London - The City Law School ( email )

London, EC1V OHB
United Kingdom

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