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If your claim for copyright infringement goes to court

This advice applies to Scotland

This page tells you what to do if negotiations with the copyright owner break down and court action is threatened. A claim for compensation may be taken to court by an exclusive licensee or a solicitor working on behalf of the copyright owner or exclusive licensee.

Where will the claim be heard

A claim for compensation for a breach of copyright and illegal filesharing is civil legal action that has to take place in the court that has the correct powers to deal with it. This is called the 'jurisdiction' to hear the case.

The rules about 'jurisdiction' can be very complicated and you will need to seek legal advice if you receive court papers for a compensation claim for copyright and illegal filesharing. The general rule is that court action should take place in the part of the United Kingdom where the person accused of breaching copyright (the defender) lives. This could also be the place identified as her/his permanent home. If there are a few defenders, the court action can take place where one of them lives.

Breaches of copyright on the internet may pose particular difficulties for clarifying 'jurisdiction' because the company seeking compensation could be based anywhere in the world. Often it may not be based in Scotland although the person accused of breaching copyright is in Scotland.

A UK company claiming compensation could:

Check who is making the claim

The Copyright, Designs and Patents Act 1988 only allows the copyright owner or exclusive licensee to sue for copyright infringement. An exclusive licensee has been granted an exclusive licence by the copyright owner to use the copyright protected work, to the exclusion of all others. This includes the copyright owner granting the licence.

If an exclusive licensee wishes to sue for copyright infringement they must join the copyright owner as co-claimant in the proceedings.

In the past copyright infringement claims against consumers have collapsed, because the claimant was not the exclusive licensee at the time of the alleged infringement or because the copyright owner refused to join the claim.

If you're not sure about who is making the claim and whether they are legally entitled to make a claim for damages, you can respond to the claim form by asking the court to ask the claimant to show that they are the copyright owner or exclusive licensee. Alternatively, you can ask the court to order the exclusive licensee to join the copyright owner (endnote 1).

If you receive papers from the English court system you must get legal advice. It is extremely likely that your legal adviser can argue that because the general rule on 'jurisdiction' should apply, that is, that the court action has to be raised where you live, it is not possible legally for the copyright owner to take you to court in England under English procedures. An English court may agree that someone from Scotland would be disadvantaged if compensation was claimed under English procedures that are unfamiliar.

If you receive court papers for legal action in the sheriff court in Scotland you may find it helpful to get legal advice if you want to deny the claim. The copyright owner still has to prove in court that you breached copyright before the court could order you to pay compensation.

You can check the court papers to see which court procedure is being used and how much is being claimed. You can respond to the court on the forms sent to you if you are admitting the claim.

Endnotes

1 Copyright, Designs and Patents Act 1988 s101. The exclusive license must join the copyright owner in court actions. For example, ACS:Law on behalf of MediaCat (exclusive license in pornographic films) bought a number of cases against consumers in the Patents County Court for illegal filesharing, and then applied for summary judgement against any client who did not respond to the claim form in time. Following this, ACS:Law applied for all other cases to be discontinued, ie where consumers and responded to the claim form. The Patents County Court did not allow ACS:Law to discontinued the claims, because it was feared ACS:Law is avoiding judicial scrutiny. The court ordered ACS:Law to join the copyright owner, and failing this the Patents County Court struck down the summary judgements and all other cases where discontinued.

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