How to assess compensation?

If you are worried about infringement or your work has been copied and you want to take action.
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jabdc5
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How to assess compensation?

Post by jabdc5 » Thu Sep 06, 2018 5:12 pm

A number of my articles ( from my website and self-published magazine) were recently used in a book printed and published by Amazon. In the book the author actually admitted he'd used my material but he never contacted me or asked my permission to do so. As I was in the process of writing a book on the same subject myself and wanted to use some these articles so I was quite annoyed.
To cut a long story short after filling in Amazon's Breach of Copyright forms they removed the book from sale. For some reason they were still selling the Kindle version, so I had to complete another BOC form to get them to remove the Kindle version from sale. I then found out the Book and Kindle versions were being sold by Amazon in the USA, Canada,Japan etc etc so I had to fill out forms in each of these countries to get the book and Kindle versions removed from sale.
Before the book was withdrawn from sale in the "reviews" there was a message from the author admitting using my material and claiming he didn't know it was copyright and apologising.
After this I wrote to Amazon ( as printers and publishers ) asking for their proposals for compensation for the use of my work without permission . They then stopped all correspondence with me. I had no contact details for the Author and again requests to Amazon for his details went unanswered.
I decided to go to the small claims court and ask for compensation from both the author and publisher , I'm currenty filling in their forms but have 2 problems.
1 I have no address for the author, which I need for the forms
2 How much compensation do I ask for and how do I justify that amount? How do I assess twenty years worth of research going down to pan? I know I interviewed a couple of "stars" and had to pay fees to their agents to get the interviews plus I travelled to the States a couple of times on research trips but that is the only physical costs I've made. How do I assess for "my time" or is that not allowed?
Any guidance would be appreciated.

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AndyJ
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Re: How to assess compensation?

Post by AndyJ » Fri Sep 07, 2018 11:18 am

Hi jabdc5,

Before you incur the costs of lodging your claim, you need to know the identity and the location of the other author or you could be wasting both time and money. This is because even if the court finds in your favour you still have to recover any damages from this person, which you can't do if you can't locate him. Secondly if he lives outside the UK you won't be able to enforce the judgment either since the jurisdiction of the courts for civil matters does not extend outside the UK. There are certain reciprocal arrangements within the EU for enforcing civil judgments but it's a long tedious system and would only be worth pursuing if the amount of the damages was substantial.

So you need to locate the author. Was the book self-published? If so you are probably reliant on any distributors such as Amazon to provide the contact details, and if they are being unco-operative it may need to a solicitor's letter to open the logjam. If there was an actual publishing house involved then clearly they will be able to provide the author's details, and unlike Amazon, a conventional publisher will be aware that they are jointly liable along with the author for any copyright infringement so that will tend to assist you.

However, none of that answers your question. There are two methods of assessing damages. The first is to calculate what you have lost because of the infringement. So for instance you can base the claim on a notional fee you would have charged to license the other person to use your work. If you have no specific experience of licensing your work, have you ever been paid for one of your articles to appear in a magazine? Failing any direct experience of licensing/selling your work, you can use standard rates cited by, for example, the NUJ. However bear in mind that these rates are a guide only, and you may need to adjust up or down based on your perception of the value of your work, for instance due to the exclusivity of the interviews you mention or some other factor such as your academic credentials or recognised expertise in your subject matter. Sadly for your situation, the standard way of approaching damages does not take into account any costs you incurred in researching or writing the articles. However on the plus side, you would be able to adduce evidence that the infringement has greatly damaged the financial prospects of the book you intended to publish.

The second method is called an account of profits, and as the name suggests, it is based on the profit after allowable expenses which the other person has made through the infringement. So say he had sold 1000 hardcopies at ₤10 each plus plus 500 of the kindle version at ₤3 each, that would give a gross income of ₤11500. Let's say printing costs were ₤250 and after Amazon's share (say 40%) is deducted that would leave the author a profit of ₤6750. This would then form the amount of damages using the account of profits method. Obviously you don't know how many copies may have been sold, although you probably do have the prices of the hard copies and the kindles. Also you won't know the cost of the printing. A bit of research should identify how much Amazon's share is. Usually if you want to go down the account route, you will need to get the court to order disclosure of the details, such as the number of sales, which you don't know.

Which then leads on to the type of claim you are making. You mention the small claims court, by which I assume you are referring to the normal money claim system. This won't be much help, in this instance because you first need to establish that infringement has occurred, and only the High Court can hear copyright claims. However there is a special small claims track of the Intellectual Property Enterprise Court (IPEC) within the High Court (more details here (pdf)). The beauty of the IPEC small claims track is that it is designed for litigants in person and you don't necessarily need a lawyer at any stage if you are prepared to do a bit of research yourself.

If you have absolutely no luck in establishing the full identity of the author (including his contact details) you could just bring a claim against Amazon as the publishers of the infringing work. This would certainly encourage them to give up the details of the author, but given that they can afford some high-priced legal advice, you may need to involve your own solicitor. Since legal costs cannot normally be recovered when using the IPEC small claims track, you need to be fairly sure that the amount of the damages you stand to gain is going to outweigh the legal costs you incur in bringing your claim.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

jabdc5
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Re: How to assess compensation?

Post by jabdc5 » Fri Sep 07, 2018 1:11 pm

Thank you for your very comprehensive reply. Just a couple of further questions.
1 There are no contact details in the book for the author although I have now been given an email address. Neither is a publisher listed although it states "Printed by Amazon" and they are the sole distributors. As the book appears to be, "self published" through Amazon are you saying that Amazon as printer,publisher (?) and distributor of the book have liability as well as the author - who by the way does reside in the UK ? Or as it is possibly classed as "self published" do Amazon have any liability at all?
2 I'm a little confused when you say I can't use the Small Claims Court because I have to establish that an infringement has occurred. Surely I've already established that, as the Author has admitted it and Amazon by withdrawing the book from sale have by definition also admitted it? I wouldn't be going to Small Claims Court to try to claim a breach of copyright, I'd only be going to claim compensation .
Thanks
J

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Re: How to assess compensation?

Post by AndyJ » Fri Sep 07, 2018 9:52 pm

Hi jabdc5,

The rights of a copyright holder can be infringed in a number of ways: straight forward copying a work; performing a work; making a work available to the public (for instance by selling or lending the work); and making an adaptation such as a translation of a work, without the permission of the copyright owner.

From this you can see that this other author may have copied your work, but he is not solely responsible for making it available to the public. That is where Amazon become liable. However since they are well lawyered up they will have indemnified themselves by getting the author to assume liability by authorising them to issue the work to the public. Nevertheless, if you initiate a claim against them, they can only use that defence by revealing the details of the actual infringer.

From the terms and conditions on Amazon's website it is clear they are acting as a publisher. For example an author who uses their Kindle Book service has to accept their royalty scheme, which effectively means the author can no longer be classed as a self-publisher since he has surrendered his publishing rights to Amazon.

On the matter of small claims, in order to use the money claims system, you must be in a contractual or quasi-contractual relationship with the person who owes you money. So for instance if you can legitimately raise an invoice for services but the other person fails to pay, or you lend a friend a thousand pounds on the condition that he repays you within six months but he fails to do so, these are both examples of a pre-existing contract or arrangement between lender and borrower or supplier and client. They can be dealt with through the normal money small claim system provided the amount is below the upper limit. However in your case, the underlying relationship does not exist and therefore the standard small claims system cannot adjudicate on liability. Although you say that the other person has admitted copying your work, he might claim he is not liable because one of the exceptions applies in his case, meaning that he has not infringed your copyright. For example if he merely used quotes from your articles and provided a credit to you as the source of the quotations, he might be able to defeat a claim by virtue of section 30 of the Copyright Designs and Patents Act 1988. There are a number of other technical arguments which might also mean he is not liable, for instance that he did not take a substantial part of your work.The matter of whether copyright infringement has occurred can therefore be quite complicated and has to be decided by the specialist courts set up to do this, one of which is the IPEC I mentioned.

All of that having been said, if the other author lives outside the UK, you face a significant hurdle in getting any damages from him. Ideally you would be best to sue him in his own country because any judgment against him can be enforced there more easily. But conversely it will be more expensive for you to brng a claim as you will almost certainly need to engage a local lawyer to fight your case. Much will depend on which country is involved. As I said, if it is another European Union member state, a UK civil judgment can be enforced there, but that too will involve extra expense and some legal assistance.

I think you would be well-advised to get some preliminary advice from a speciialist IP solicitor (you can find one through the Law Society website), who can go through the details of your claim and advise you on the realistic prospects of getting any money either from this other author or Amazon. Make sure you find out in advance if you can take advantage of a brief, free consultation to outline your case, or what fees you will be required to pay from the start.
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jabdc5
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Re: How to assess compensation?

Post by jabdc5 » Sun Sep 09, 2018 9:15 am

Thank you once again. The book actually uses whole articles and interviews of mine copied word for word. Its not one or two lines its several complete chapters.
A friend told me something yesterday which I'd like your thoughts on. He said since last year breach of copyright especially from the internet is now an offence under the 2017 Digital Economy Act. He suggested I notify the Police and let them sort it out. Then it would be easier to claim compensation. I'm just a retired guy who had his work stolen this is all new to me your assistance is really appreciated.
J

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Re: How to assess compensation?

Post by AndyJ » Sun Sep 09, 2018 7:45 pm

hi jabdc5

Unfortunately your friend has rather misunderstood the purpose of the amendment introduced by section 32 of the Digital Economy Act 2017. Its main purpose (see sub-section (3)) was to increase the maximum sentence on indictment for criminal copyright infringement from 2 to 10 years in prison. The other thing it did was to include a new, specific offence relating to making a work available to the public (one of the rights I mentioned in my previous reply) within the pre-existing section 107 CDPA criminal offences. In other words there has always been a criminal level of infringement.

However the first thing to note is that the police are highly unlikely* to be interested in investigating if a crime has been committed as it normally fails to Trading Standards to bring prosecutions for these offences. And the second thing is that there would need to be evidence of a reasonably large-scale operation to copy and market the book before a prosecution is likely to follow. Bear in mind that a successful prosecution needs to meet the higher evidential test of 'beyond reasonable doubt'** and neither Trading Standards nor the CPS will authorise a prosecution unless there is a good prospect of getting a guilty verdict on the available evidence.

If you read section 107 you will note that an offence is only committed if the article the person is dealing in "is, and which he knows or has reason to believe is, an infringing copy of a copyright work". As you have already told us, this other person has said he didn't realise the work that he had copied was protected by copyright. It follows that therefore he won't have known or believed that his book was an infringing work. This is clearly a naive point of view but if he was prosecuted I'm sure that his barrister would use this line of defence to sow doubt into the minds of the jury. That said, as this person does not live in the UK it seems unlikely he will be prosecuted here. Sorry to pour so much cold water on this particular strategy, but I really don't want you to waste time and money on the least productive approaches to your problem. By all means contact your local trading standards office and explain the issue, and see if they think it's something they want to take on.


* The most likely time that the police would be involved is when the copyright infringement (such as counterfeit DVDs of Hollywood movies) formed part of wider organised criminal activiities. The police might also conduct joint investigations alongside Trading Standards officers, especially if there was a threat of violence during raids on premises or when making arrests

** These days when giving directions to a jury, a judge doesn't use this phrase. Instead he/she is likely to say 'You should only return a guilty verdict if you are sure ..." Nonetheless the doubt threshold is much higher than in civil cases where the test is the balance of probabilities.
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jabdc5
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Re: How to assess compensation?

Post by jabdc5 » Mon Sep 10, 2018 10:38 am

thank you again for another comprehensive reply, just one thing, you keep saying "as the Author does not live in the UK" but he does, he lives in the Birmingham area.
I shall assess my options and decide which route to pursue. Although the Author says he did not realise the material was copyright the pages he copied from my website had a "no right click" on them so they could not be cut and pasted, which in itself should have made him realise I didn't want anyone copying the articles . So frankly I don't believe him .
thanks again,
J

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Re: How to assess compensation?

Post by Nick Cooper » Mon Sep 10, 2018 12:21 pm

jabdc5 wrote:
Mon Sep 10, 2018 10:38 am
Although the Author says he did not realise the material was copyright the pages he copied from my website had a "no right click" on them so they could not be cut and pasted, which in itself should have made him realise I didn't want anyone copying the articles . So frankly I don't believe him .
Such tools are not foolproof, as they rely on the person attempting to right-click having Java enabled on their web browser. Even if they do have, they might try claiming just not being able to right-click wasn't enough of a clue, if you did enable a pop-up warning. It goes without saying, of course, that no-right-click will not dissuade a determined copier, as it is no so easy to bypass.

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Re: How to assess compensation?

Post by AndyJ » Mon Sep 10, 2018 2:55 pm

Hi jabdc5,

Apologies for misreading one of your earlier replies about where the other person lives. Obviously the fact that he is a UK resident makes a lot of difference to several of my earlier points.
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