How do I resolve a dispute about infringement of copyright?
Choosing an appropriate dispute resolution mechanism depends on a number of factors. For example, you should consider the following-
- What the end goal is – a court has less flexibility in awarding the options listed above than negotiation with the infringer directly or mediation;
- How much time, effort and money is available to resolve the dispute – courts operate to fixed timescales and court procedure is regarded as complex – certain courts require legal representation;
- The attitude of the other party – dealing with an apologetic infringer or a charity with limited funds will be different to dealing with a flagrant infringer or a large corporation. Fraud-aware organisations may require high levels of proof of ownership of copyright before taking a claim seriously.
- Whether the dispute is UK based.
Dispute resolution mechanisms can be described as formal or informal. Formal dispute resolution takes place when disputes are resolved in a court of law or in another formal setting, such as arbitration. In contrast, parties may choose informal mechanisms such as negotiation and mediation to settle their disputes.
The main forums for dispute resolution in the UK are: –
- Negotiation between the parties – this can be very informal and involve exchange of correspondence or telephone calls. Negotiation may also take place between professional agents appointed to represent the parties, or there may even be a more formal negotiation meeting. Negotiation is usually confidential. The costs involved are usually the time of the parties negotiating, the costs of correspondence and travel expenses.
- Mediation – this refers to a situation when an impartial third party hears both sides of the dispute and helps the parties to come to an agreement to resolve the dispute. A professional mediator can be used. Mediation is usually confidential. The costs involved are similar to negotiation but a mediator’s fee may have to be considered.
- Arbitration – this is when a third party is appointed to listen to the dispute and to make a decision on the outcome. Usually an arbitrator is an expert in the area of the dispute. Arbitration is usually confidential and there will be costs involved in the arbitration process.
- Court Action – in a court action each party, or their agent, makes their argument before a judge who then makes a decision on the outcome with reference to the law. Court Action is a matter of public record. Court fees are payable for starting an action and at various stages in the process, including hearings. In the UK, there is a general rule that the losing party may have to reimburse some of the costs of the successful party but this can be limited.
If infringement has occurred on a third-party intermediary platform or website, you may find that the website has its own ‘takedown’ procedure. Usually when you sign up with an online platform you are required to accept ‘terms and conditions’ which are accessible on the website – you may find that these control how you can pursue enforcement action when infringement happens on the platform.
If the infringement took place outside the UK or the defendant is located outside the UK, it is best to seek professional advice on your options.
The first step is to be clear whether the work is protected by copyright and whether the infringing behaviour has any legal justification (e.g. under a copyright exception).
If you are reading this section you have probably received an email, letter, Pre Action Protocol correspondence or court summons from a copyright holder…
In England and Wales, and Northern Ireland, parties are expected to try to resolve disputes before taking Court Action, for example by using a more informal dispute resolution mechanism.
You may wish to use a third party to assist in enforcement of your copyright, such as a solicitor, a mediator or an arbitrator.
Sometimes court action appears to be the only appropriate way to resolve a dispute. The Intellectual Property Enterprise Court Small Claims Track offers a dispute resolution option…