Professional report copied
Professional report copied
I was the author of a professional consultant report which accompanied a planning application. It was a history based report. I now find that another company has used my report for their application on a different but similar building. This is around 20 pages of direct lifting of my text and the removal of any reference to me as the author which was included in the original. I am unsure what I should be asking for in terms of damages? Is it just the profit they have made from this (they would no doubt lump it in with the other parts of the application and minimalist this report) or is it better to take another approach based on flagrant infringement? In any case, should I be suggesting costs or should I just invite them to make a proposal? Thanks.
Re: Professional report copied
Hi LHistory,
I assume that you charged the original client a fee for your consultancy work. If so, I think this would be an appropriate value to place on the damages you seek from the person who has infringed your copyright as, had they approached you for a similar report, that is what you would have charged them for your professional advice. You can also seek additional damages because removing your name from the report would be treated as flagrancy by a court. In other cases of this type, the additional damages are often assessed at 100% of the normal damages.
I would agree with you that trying to base the damages on the probable profit they have made is a much less reliable approach, and could draw out the settlement process as they will want to argue over the percentage of the profit which arose from the report alone.
I would suggest that you take your original fee, double it to account for the flagrancy and then add approximately 10% to the figure to cover your administrative costs in having to chase them. That is realistically what you might expect a court to award you under the circumstances. It is then open to you, if you wish, to offer some kind of discount for a speedy settlement. You should also make it clear that you reserve the right to pursue the matter in court if they prevaricate or make a derisory counter-offer.
I assume that you charged the original client a fee for your consultancy work. If so, I think this would be an appropriate value to place on the damages you seek from the person who has infringed your copyright as, had they approached you for a similar report, that is what you would have charged them for your professional advice. You can also seek additional damages because removing your name from the report would be treated as flagrancy by a court. In other cases of this type, the additional damages are often assessed at 100% of the normal damages.
I would agree with you that trying to base the damages on the probable profit they have made is a much less reliable approach, and could draw out the settlement process as they will want to argue over the percentage of the profit which arose from the report alone.
I would suggest that you take your original fee, double it to account for the flagrancy and then add approximately 10% to the figure to cover your administrative costs in having to chase them. That is realistically what you might expect a court to award you under the circumstances. It is then open to you, if you wish, to offer some kind of discount for a speedy settlement. You should also make it clear that you reserve the right to pursue the matter in court if they prevaricate or make a derisory counter-offer.
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
Re: Professional report copied
I agree with everything Andy J has said above. His advice is sensible and cautious, however if you are particularity aggrieved you could claim a higher amount. Andy J suggests a total claim of 2x the normal value , however if the infringer is particularly badly behaved then you could quite reasonably claim more.
Total awards of 3x or 4x the normal value of the work have been awarded by the Intellectual Property Enterprise Court, indeed in one case, Absolute Lofts South West London Ltd vs Artisan Home Improvements Ltd & Darren Mark Ludbrook [2015] EWHC 2608 (IPEC) , the court awarded 20x the normal value of the work. http://www.bailii.org/ew/cases/EWHC/IPE ... 2608.html
It appears to me ( and I have no evidence to back this ) that the court is more generous with additional damages in cases where the value of the work is low, ie in the hundreds. If the value is in the thousands I would stick with Andys suggestion of 2x normal value. If its in the hundreds and you are particularly aggrieved and the defendant is particularly reprehensible then perhaps claiming 3x or even 4x and looking at 2x but be prepared to settle for less.
One of the reasons might be that in the small claims track, very few expenses can be claimed, typically the court fees and travel to & attendance at court . However this may be contradicted by the Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights , article 14 , Legal Costs states " Member States shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this". A generous award of additional damages resolves this discrepancy for the courts.
With regards to costs, it is a common tactic of defendants to ignore perfectly legitimate infringement claims. If they do that then one can claim additional expenses pursuant CPR part 27.14 (2)(g) and or CPR 63.26(2). Under these provisions the IPEC has awarded litigant in person claimants additional expenses for their lost time.
Total awards of 3x or 4x the normal value of the work have been awarded by the Intellectual Property Enterprise Court, indeed in one case, Absolute Lofts South West London Ltd vs Artisan Home Improvements Ltd & Darren Mark Ludbrook [2015] EWHC 2608 (IPEC) , the court awarded 20x the normal value of the work. http://www.bailii.org/ew/cases/EWHC/IPE ... 2608.html
It appears to me ( and I have no evidence to back this ) that the court is more generous with additional damages in cases where the value of the work is low, ie in the hundreds. If the value is in the thousands I would stick with Andys suggestion of 2x normal value. If its in the hundreds and you are particularly aggrieved and the defendant is particularly reprehensible then perhaps claiming 3x or even 4x and looking at 2x but be prepared to settle for less.
One of the reasons might be that in the small claims track, very few expenses can be claimed, typically the court fees and travel to & attendance at court . However this may be contradicted by the Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights , article 14 , Legal Costs states " Member States shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this". A generous award of additional damages resolves this discrepancy for the courts.
With regards to costs, it is a common tactic of defendants to ignore perfectly legitimate infringement claims. If they do that then one can claim additional expenses pursuant CPR part 27.14 (2)(g) and or CPR 63.26(2). Under these provisions the IPEC has awarded litigant in person claimants additional expenses for their lost time.