In the fast moving digital world, where photographs and editing software are available at the click of a button, how can professional photographers still make a living? While small creative businesses are often aware of their copyright and associated intellectual property rights, the prohibitive cost and complexity of court action means many struggle to prevent unauthorised use of their creations. New academic research, presented at the European Policy for Intellectual Property (EPIP 2015) conference in Glasgow, organized by CREATe (Research Council UK Copyright Centre), looks at the role of the new Intellectual Property Enterprise Court (IPEC) Small Claims Track in England and Wales for photographers and other creative SMEs.

The project, by Sheona Burrow, doctoral researcher, studies the cases lodged with the IP Small Claims Court in London and finds that the court has been particularly important for photographers, who achieve a good success rate in recovering damages for unauthorised use of their images online. It also notes a high degree of ignorance from website designers and operators about correct use of photographs in the digital age, with many assuming that all images found using a search engine can be used without permission or payment or simply unaware that copyright applies.
The study, which forms part of a PhD thesis, finds that claims which progress to a hearing in front of a specialist district judge show a high success rate for claimants. However, the deterrent effect of lodging a claim is also apparent, with around half of claimants achieving successful settlement of their claims early in the court process. Significantly, it is not necessary to engage a lawyer to assist with the process, and in more than half of the English court cases neither party have any form of legal representation. The average award by the court is £2,230, although claims range from £150 to £10,000. Considering that many professional photographers incur substantial outlays and risk in capturing the perfect shot – drone apparatus, the hire of helicopters or diving equipment, international flights, the risk of arrest or becoming involved in violence – flexibility in such awards acknowledge that professional photographers also have to eat.

In Scotland, there is no easy and accessible forum to enforce copyright claims of this type. The small claims limit for claims in the sheriff court is £3,000, less than third of the £10,000 ceiling in England and Wales. There is no specialist intellectual property judges in the lower level courts, although high value patent claims can make use of the Court of Session in Edinburgh. The popularity of the IPEC Small Claims Track in England and Wales presents a challenge for Scotland in fulfilling its commitment to Scotland’s creative industries.

Conversely, the very wide industry spread of businesses cited as defendants in IPEC Small Claims Track cases suggest that not enough is being done to educate businesses about the relevance and applicability of intellectual property rights in the digital environment. Case actions are commonly understood the represent only the thin edge of the wedge when it comes to actual infringement.

However, the study considers the rationale behind the introduction of a small claims court, which has not seen uptake by creative businesses involved in the creation of musical and dramatic works or more collaborative visual works such as films. As court budgets contract across the United Kingdom, continuing to provide a forum for enforcement of copyright claims by those working in distinct fields such as photography, may provide difficult. The challenge of providing useful mechanisms for promoting and upholding intellectual property rights and the resulting value for economy will remain. The author suggests that while the IPEC Small Claims Track may provide a ‘sticking plaster’ for the challenges of digitisation for photographers, it fails to meet the needs of the creative industries as a whole.

ENDS

Notes for editors: ‘Assessing the IP Small Claims Track’ by Sheona Burrow is a paper presented at the European Policy for Intellectual Property (EPIP) Conference, University of Glasgow, 2-3 September 2015. For more information visit: http://www.epip2015.org/

Sheona Burrow is a Scottish-qualified solicitor currently pursuing a PhD in Intellectual Property Law at CREATe (Research Council UK Copyright Centre), School of Law, University of Glasgow.

For further information contact Sheona Burrow at +44 (0) 7921 003 793 (email: s.burrow.1@research.gla.ac.uk)