We need to change the way courts deal with copyright cases


Last week, the Copyright Review Committee presented its report, Modernising Copyright, at the Royal Irish Academy in Dublin. Throughout the report the committee acknowledges the importance of balancing the competing interests of rights-holders and end-users.

Equally, however, procedural issues regarding how disputes will be managed under the proposed system were to the fore. On this point the committee makes three proposals: the introduction of a new intellectual property (IP) track in the District Court; a new specialist IP Circuit Court; and the creation of an alternative dispute resolution procedure to be overseen by the proposed Copyright Council of Ireland.

In Ireland the District Court Small Claims procedure, which is conciliatory in nature, provides a fast and inexpensive (€25) way for consumers to resolve disputes without the need to employ a solicitor. The District Court Small Claims Registrar (and not a judge) hears the complaint and then makes a recommendation to the parties concerned. The recommendation is non-binding and either party may take their case to the District Court proper. Presently the Small Claims procedure places an economic limit of €2,000 on claims, however section 15 of the Courts and Civil Law (Miscellaneous provisions) Act 2013 has extended the monetary jurisdiction of the court to €15,000 and the committee is of the view that this should also apply to IP claims brought before the Small Claims procedure.

The committee’s proposal to include intellectual property disputes within this procedure could go a long way to eliminating cost barriers that have effectively precluded both creators and users of content from defending their rights.

In addition the committee recommends that a specialist intellectual property court be established in the Circuit Court along the lines of the Intellectual Property Enterprise Court (formerly the Patent County Court) in the UK. In light of section 14 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013, the committee recommends extending the monetary limits of Circuit Court IP claims to €75,000.

A chief concern when extending the jurisdiction of any court or tribunal centres upon the competencies and capabilities of that court or tribunal to fulfil that role. The committee addresses the need for training and resources should such a system be introduced but it is questionable whether this would suffice.

Intellectual property disputes are renowned for their complexity and time-consuming nature. To demand Small Claims Registrars, who primarily deal with consumer disputes, to pronounce upon the validity of, for example, plant variety patents or whether fair use/fair dealing exemptions apply may prove overwhelming.

There are, however, lessons to be learned from the UK approach. The Intellectual Property Enterprise Court (IPEC) offers comprehensive services that include case-management, small claims procedure and streamlined multi-track procedures. Monetary limits in the small claims procedure are limited to £10,000 and an award of costs is highly restricted.

Within the IPEC “multi-track”, damages of up to £500,000 plus limited costs of €50,000 may be awarded. The success of IPEC has been attributable to the provision of a case managed two-track court system, presided over by expert adjudicators.

Arguably centring IP resources in one court rather than across both District and Circuit Courts is a more efficient use of resources in terms of value for the State and access to judicial expertise in IP cases for litigants.

Interestingly, in September of this year the US Copyright Office presented a report entitled Copyright Small Claims to the Committee on the Judiciary, where they recommended the creation of a Centralised Copyright Tribunal within the US Copyright Office as a form of Alternative Dispute Resolution (ADR) procedure. The Tribunal would deal primarily with “small copyright claims”.

In opting for an ADR procedure as opposed to State or Federal Court small copyright claims, the Copyright Office were of the opinion that knowledgeable decision-makers were key to the success of such a system. Especially where participants “if acting pro se [self representing] – might need guidance in focusing their claims and defences, making the adjudicators’ knowledge of applicable law that much more important”.

If expertise is a pre-requisite to success then Irish small claims procedures may be wanting. Instead a system more closely aligned with the UK’s IPEC may be more appropriate. A two-track procedure in a single forum offers significant benefits in terms of expertise and economies. In practice the estimated value of the infringement may provide the initial indicator as to which procedure to follow - whether that be the specialist IP District Court/Circuit Court, High Court or the Copyright Council.

In reality this would simply mean moving decision-making away from District Court Registrars, as proposed by the committee, to specialist Circuit Court case-managers.

These case-managers could advise litigants on the appropriate track in which to pursue their claim while advising on the benefits of ADR services provided by the Copyright Council.

Anthony O’Dwyer is a PhD candidate at University College Cork, specialising in copyright law

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