Plagiarism of Blog Articles

[Nick Cooper]

Hi Nick

Yes, and I believe it was mandatory for any business domain to supply all of their details, and for those details to be publicly available via Whois. As far as I can remember the privacy option was for personal or non-business websites.

Yes, I know I could have opted-out at the time of registration (they're all .org.uk domains), but chose not to. I find it strange, though, that Nominet's response to GDPR has to redact all those previously-approved details, but not made any effort to contact the domain owners about it.

[AnnH]

A good point Nick, I own various domains both .co.uk and .com and received no notification of changes. I found out quite by surprise when chasing an infringer - this will certainly make infringement claims more complicated at times. I can't fathom why they have done this, I see no basis for it.

[AnnH]

There has been a development in one of my cases and I would be most grateful if someone could comment on a question I have please. One of my infringers has asked if they can settle the matter by paying their debt in instalments. In principle I have no objection to this.

My dilemma is whether this would alter my position if I were faced with non-payment of part of their debt (I believe it is not uncommon for debtors to pay an instalment and then go to ground) - could I still proceed as normal to the IP Court to recover the unpaid portion, or would I be required instead to go through a different debt collection process. In other words, would I be compromising my position and options in any way by agreeing to a payment schedule. I still want to reserve the right to take the matter to the IP court if it came to it. Incidentally this infringer has not been vexatious as yet and has admitted liability.

Or is it more straightforward to ask for payment in one sum, but to allow an extension to the original payment terms. I would normally add interest at the statutory rate once a debt becomes overdue.

[AndyJ]

Hi Ann,

Given that the other party has admitted liability, you can still have recourse to the IPEC small claims track for an infringement claim, since clearly a part-payment doesn't mean that the liability has gone away. In a way, the position would be analogous to a breech of a copyright licence due to the licensee not paying the agreed fee.
However, once the other party has agreed to pay, and indeed demonstrates an acceptance of this agreement by paying at least one installment, a liability for the debt is established and so you also have the option of using the normal money small claims route through your local county court or online, which may be quicker than the IPEC. However in both cases the problem may be in getting any judgment enforced. Quite often in ordinary money claims the defendant convinces the court that he has very little money and thus the repayment terms may be set at a ridiculously low level, such as £5 a week, meaning that the debt can take many months to pay off, assuming the defendant doesn't later default on the agreed payments.

Details of the court fees involved in a money claim can be found here.

[AnnH]

Andy, thank you very much indeed for clarifying that. Ideally I would stick to the IPEC because if it did come to that, at least the judge would have the powers to apply any applicable heads of damages (which I don't think I could ask for if I filed a money claim).

Using either method, am I right that if matters did proceed formally the infringer will have a strike against them on their credit history?

[AndyJ]

An adverse judgment in the IPEC small claims court would not be recorded as a CCJ by the credit reference agencies.

[AnnH]

By way of a quick update, on the two current cases (not the really big one which I haven't yet started): one infringer has now paid in full - I split this into two payments for them and it has been resolved amicably. The second infringer has ignored all letters and other forms of communication and today I was compelled to send him a Letter Before Action. I suspect he will also ignore this, which is pretty silly of him - from this point onwards he will be racking up court fees and interest. I suspect he feels I will just let it go - I won't.

[AndyJ]

Hi Ann,

I wish you the best of luck with your claim, although it sounds as if you won't need luck as you seem well prepared for what comes next. As you have now commenced formal litigation, I am not able to offer any specific advice on your case (assuming you would wish me to!), but of course we can continue to offer general advice on the law and how the system operates, along with any legal details you encounter. Should you need specific legal advice regarding your claim, especially if the other party opts to be represented by a solicitor, you can try the IP Pro Bono Unit.

[AnnH]

Thank you Andy. I will update this post later on with anything I have learnt if it may be of use to other readers, and a first-hand account of the process should this go through the court (and I suspect it will).

For 'the big one' I will certainly need formal legal advice - thank you for the reminder about the pro bono service. Legal costs are well beyond the means of most photographers like myself so that is very useful.

[Fatty]

With regards to litigation being expensive, that is relative to the amount claimed. Litigation through the IPEC small claims track is a DIY job and does not need a solicitor. The costs for issuing the claim are here-

https://www.gov.uk/make-court-claim-for ... court-fees

For claims up to up to £300 its £35
claims £300.01 – £500 = £50
£500.01 – £1,000 = £70
£1,000.01 – £1,500 = £80
£1,500.01 – £3,000 = £115
£3,000.01 – £5,000 = £205
£5,000.01 – £15,000 = £455

The form to issue the claim is an N1 which you find here:-

https://formfinder.hmctsformfinder.just ... n1-eng.pdf

Just fill it in together with your "Particulars of Claim" which will likely be largely what you put in your Letter of Claim. Send it to

Chancery Chambers,
The Rolls Building,
7 Rolls Building,
Fetter Lane,
London
EC4A 1NL


Make your cheque payable to ‘HM Courts & Tribunals Service’.

There is another fee to pay 28 days for the hearing which is a similar amount. Make sure you don't forget to pay the hearing fee on time ! Many creatives currently report that in the UK few IP users will pay until the court papers arrive ( mainly due to online advice to ignore the claim ) however once court papers arrive, most defendants settle before a hearing.
Initially the claimant pays the court fees, but these are then added to the debt if the claim is successful.

Before you issue the claim you must send a formal Letter of Claim ( aka Letter Before Action ) which you are doing now. Include a Summary of the key evidence and cause of action, ie quote the sections of the Copyright Designs and Patents Act Infringed, eg a typical claim might include infringements of sections 16, 17, 20 and 77. If your infringed work included a digital copyright notice such as photo meta data and it was removed then you may also have a claim under 296ZG.

With regards to the amount, the starting point is what you normally charge, however you can claim additional damages on top of that for "Flagrancy". How much you claim is up to you and will certain to be the focus of much argument. The court can and have awarded 20x the normal value :- see Absolute Lofts South West London Ltd vs Artisan Home Improvements Ltd & Darren Mark Ludbrook [2015] EWHC 2608 (IPEC)

http://www.bailii.org/ew/cases/EWHC/IPEC/2015/2608.html

However typical amounts are less, with awards of 2x to 6x the works normal value being typical in the IPEC. If you don't have a track record of selling then the courts will consider market rates which is what happened in Absolute Lofts. If you have a track record of selling the works and provide proof then there should be no need for the court to consider what others charge.

The legal basis for these additional damages are section 97(2) of the Copyright Designs and Patents Act 1988 and Articles 3 & 13 of Directive 2004/48/EC of the European Parliament and of the council of 29 April 2004 on the enforcement of intellectual property rights and / or Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. The legislation is all online:-

https://www.legislation.gov.uk/ukpga/1988/48/contents

http://eur-lex.europa.eu/legal-content/ ... 1)&from=EN

http://eur-lex.europa.eu/LexUriServ/Lex ... 019:EN:PDF

Costs in the small claims track are very limited, however if you are facing a defendant who behaves unreasonably, eg submits a defence with no realistic prospects of success, or worse ignores the claim altogether, then you can and should claim for additional costs pursuant 82. CPR 27.14,2(g):-

https://www.justice.gov.uk/courts/proce ... les/part27

A suitable amount to claim for your time would be 19 GBP per hour which is the amount you would claim in a multi track case under the the Litigants in Person (Costs and Expenses) Act 1975. Normally this would not apply in the small claims track but if the other party is unreasonable, the IPEC have shown themselves amenable to additional costs under this head.


There is a useful official Handbook for Litigants in Person :-
https://www.judiciary.gov.uk/wp-content ... Person.pdf

Don't be frightened of being a Litigant in Person, the small claims track is set up for it and the judges are well used to dealing with Litigants in Person of all different skill levels. Only golden rule, is comply fully with any court directions in good time.


Disclaimer, I am not a Lawyer.

[AnnH]

Fatty, thank you very much indeed for the extremely useful information, for myself and the others who will read this.

I'll spend more time scrutinising the links you shared but I found the Lofts case very interesting.

And also what you pointed out about costs. I was recently thinking about the number of hours of my time which has been wasted communicating with the infringer (who has never responded), navigating the various stages of the court process, and preparing the Particulars (a small fortune in printer ink for the associated screen shots and copies of communications). I am currently awaiting the next stage from the court. Anyway, regarding the amount of time - this is what is so vexatious. An infringer like the one I'm dealing with will choose to go to ground and cause the maximum wasting of time in the hope that the claimant will give up. This makes me very reluctant to concede anything whatsoever if we progress as far as mediation. I have charged him a fair and reasonable sum for using my work, exactly in line with my current fees, and there is certainly no room to negotiate (downwards). Because of the time wasting element I would prefer that the court determines the case rather than now settling, I cannot see any other way forward.

[AnnH]

Just a heads up for completing the Claim Form. There is a section on it regarding the amount claimed. I filled this in with the figure on the invoice I had sent to the Defendant and the court fee (based on the former). Under Total Amount Claimed I put "for the Court to determine" since I have asked them to assess and award damages.

The Court returned my forms today with a covering letter saying: "Unfortunately, we are unable to issue this Claim because of the following: you have not indicated the amount of additional damages you are seeking in the claim. This should be stated so that we can work out the court fee for the claim. If this is left unspecified, we will charge the maximum court fee of £10,000."

I therefore have to come up with a figure for damages - I always thought that was the a job for the Judge, and I really have no clue. I think the only way forward is to guess a reasonable figure and then I presume the court will amend it from there. I will certainly be claiming for flagrancy, lack of attribution, the use of my work on the defendant's business website and devaluation of my work. But how on earth do I put a price on that ......

[ATMOSBOB]

Try 3x for damages.

[AnnH]

ATMOSBOB - thank you for suggesting that. It's what a colleague has just told me to do, very helpful to get an opinion here. In any case I'm sure the court will determine up or down as they see fit, but this will be a good starting point.

[AndyJ]

Hi Ann,

Just to make it clear, the amount you put on the claim form in respect of additional damages is just to allow the court staff to calculate the fee which is due. Once you get to court (assuming the case doesn't settle) you would need to explain you reasoning, but as you say, the court will usually work on other empirical factors, bearing in mind that part of the purpose of any additional damages is to act as a deterrent.