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Research Blog Series: Copyright Litigation in the English Courts 2009-2015

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Research Blog Series: Copyright Litigation in the English Courts 2009-2015

By 2 March 2018No Comments

Luke McDonagh presents the project that investigated cases on copyright heard at the High Court and Intellectual Property Enterprise Court, for the Research Blog Series.

Royal Courts Of Justice – London. By Nick Garrod, CC BY-NC-ND 2.0

Project: Copyright Litigation in the English Courts 2009-2015: Data and Analysis

Primary Investigator: Georg von Graevenitz, Queen Mary University of London
Co-Investigator: Luke McDonagh, City University of London
Senior Research Assistant: Leslie Lansman, Queen Mary University of London
Research Assistant: Thomas Loukaris-Kapnidis, Independent researcher

What did your research aim to do?
In 2015 CREATe agreed to facilitate this project to develop a dataset containing the details of all court cases on copyright heard at the High Court (HC) during 2009-2015 and at the Intellectual Property Enterprise Court (IPEC) from the same period, 2009-2015. The project team aimed to collect data on copyright litigation from the paper records held at the HC and IPEC and to provide analysis of emerging trends in a CREATe report.

We aimed to fill a significant gap in our understanding of copyright litigation in England & Wales. English Court filing records are held by HMCTS and very little is published about the nature of copyright actions that never make it to court. Moreover, even for cases which reach a final judgement, not all cases reach BAIILI (Britain and Ireland’s primary resource for accessible legal judgements).

This gap in our knowledge poses problems: without knowing the extent of copyright litigation, we cannot rationally discuss litigation’s wider effect on the creative economy; without knowing the types of disputes that take place, we are not in a position to judge whether copyright enforcement tends to be limited to certain areas (music, film etc.) or whether it is more widespread; and without knowing the categories of litigants (individuals, limited companies, collecting societies etc.) we cannot know whether the enforcement system works to ensure all copyright holders have access to justice.

The provision of our CREATe report and dataset helps to fill this gap, and to assist researchers in answering the above questions.

How did you do it?
We proceeded with the support of judges at the Chancery Division of England & Wales – including the High Court and IPEC. We received the special permission of HMCTS to examine the paper and electronic records held at the Rolls Building in London. Data were collected from HMCTS court records to capture key information about each court case. This includes information on judges, parties, claims, defences, and outcomes including appeals. The researchers used a tried and tested methodology that has already delivered detailed data on patent cases at the HC and at IPEC.[1] This involved developing a pretested set of data categories, which were then noted in spreadsheets, and were manually completed by trained law students, acting as research assistants, using individual case files. In this regard, Data were collected from HMCTS court files in order to capture key information about each court case, including information on judges, parties, claims, costs and outcomes (including appeals).

In writing up our report, we analysed the key data and figures, including case volumes per annum, as well as emerging trends in copyright litigation.

What are your key findings?
In our CREATe report we have provided tables of data on the numbers of copyright cases filed per year at the High Court and IPEC.

We note the substantial overall increase in copyright cases at the IPEC, post-reforms, with no corresponding decrease at the HC level, indicating that the reforms have increased the ability of low-value copyright holders to file claims. Moreover, the provision of ACM at the CMC appears to encourage parties to settle, as we observe an increasing propensity to settle after the CMC takes place.

We also note that the major copyright collecting societies – PRS/PPL – and, increasingly, the FA Premier League (FAPL) take the largest number of claims at the HC against potential, or alleged, infringers. They tend to file multiple claims simultaneously, most of which settle quickly before a hearing. Moreover, while PRS/PPL have been consistent serial litigants at the HC level, the FAPL has only recently, in the aftermath of the Karen Murphy case, become a major copyright litigant.

The increased number of claims filed at the IPEC since 2010 has led to a corresponding increase in court revenue, but has also put pressure on the single-judge system at the IPEC – if the filing trend continues, a second judge may be required for the court to maintain its quick resolution service.

What impact has your work had so far/what impact do you anticipate it will have?
Our research has been circulated among the judges of the High Court and IPEC, with Birss J of the High Court (and former IPEC judge) & His Honour Judge Hacon (the current IPEC judge) particularly interested in the way the reforms to the IPEC have encouraged individuals and SMEs to take copyright actions that would not previously have been taken due to costs concerns. HMCTS and His Honour Judge Hacon have found our research useful in considering whether to appoint a second permanent judge to the IPEC. The research has also been of interest to the UKIPO in terms of its continuing policy work on enforcement of copyright in UK courts.

We anticipate that the provision of the report and the dataset will encourage further research by CREATe and other copyright researchers. Some of this work is already taking place at CIPPM at Bournemouth University, with Prof. Maurizio Borghi, Prof. Dinusha Mendis and Dr Marc Mimler referring to our research in their ongoing UKIPO project on copyright enforcement.

The increased role of sports/broadcast organisations in copyright actions over the past few years is one emerging trend that is already the subject of follow-on work by the team of researchers.

Challenges encountered/Lessons learned
The biggest challenge relates to the nature of the task of undertaking empirical data collection at the HC and IPEC. Although recent changes have seen HMCTS move away from a purely paper-based filing system for court documents, and embrace a digital records system, this has not been entirely smooth. And since we were looking at the period 2009-2015, we still had to rely on paper records for nearly all cases. The nature of paper records is that, inevitably, parts of some files go missing and records are not always held in perfect condition. For this reason, it becomes necessary to piece together whatever information is there to get as full a picture of the court case as possible.

Another challenge was dealing with anonymity with such a large dataset. The permission we received from HMCTS was conditional on us keeping the data secure and removing any identifiable characteristics from the data files. This brings its own challenges.

Are there additional/new research questions still to be answered in this area?
In a sense, when you conduct empirical research into copyright litigation, you are forever playing catch-up, as new cases are being filed all the time. You want to get the most up-to date set of cases, but you have to set a reasonable cut-off date so that you can attempt to collect the entire dataset for the time period specified (for us it was 2009-2015). We collected the bulk of the cases during late 2015 to mid-2016 so it was not possible to include the 2016 cases as we would not have been able to collect all of them (as new cases were coming in all the time). The positive thing is that this means that there are opportunities for future data gathering, by CREATe researchers or others, for the cases filed from 2016 onwards.

How has your association with CREATe helped to take things forward?
The CREATe link has been vital. It has given us access to a network of excellent interdisciplinary researchers (including lawyers & economists) who have helped to shape our research strategy and outputs. We have presented our work at CREATe workshops and at the CREATe Annual Festival, which has provided us with the opportunity to reach a wide audience and to receive feedback.

For more information see the project page, the forthcoming working paper and:
Christian Helmers, Yassine Lefouili & Luke McDonagh, Evaluation of the Reforms of the Intellectual Property Enterprise Court 2010-2013 (UKIPO 2015).