Scholarly Concerns About a Proposed Copyright Small Claims Tribunal

Ensuring Only Good Claims Come in Small Packages: A Response to Scholarly Concerns About a Proposed Small Copyright Claims Tribunal

Scholarly Concerns About a Proposed Small Copyright Claims Tribunal

The article deals with the issue on translating legal terms from Ukrainian into English on the basis of a case study of a newly-coined term in Ukrainian legislation – 'maloznachna sprava'. The relevance of the topic of legal translation from English into Ukrainian and vice versa has become especially acute in light of the Ukraine-EU approximation agreement. While the introduction of simplified civil proceedings is itself a step towards the approximation of Ukrainian legislation to the EU, the next stage will inevitably be comparing and contrasting the existing terms within the Ukrainian and EU civil procedures. Ukrainian simplified procedure aims at considering insignificant cases (Ukr. – 'maloznachni spravy') in a speedy manner, while EU accelerated and simplified civil procedure uses the term 'small claims' for cases with a claim value for up to EUR 5,000. Obviously, these notions are not equivalent, but their meaning overlaps, creating pitfalls for translation. Thus, for proper translation, it is important to specify how the concept of small claims fits into Ukraine's national context. The notion of insignificant cases illustrates the relevance of the linguistic study of legal translations, as well as a need for the consolidation of practical achievements in the field of translation of legal discourse and, in particular, legal neologisms. The purpose of legal translation is to create a text that will be interpreted in the same way by legal professionals in the target legal system as it would be in the original legal system. The aim of translation is not to erase linguistic and cultural differences but to accommodate them, fully and unapologetically. The challenge is to convey the legal text as a fragment of a living legal system. When translating, a translator should strive for equivalence, bearing in mind the harmonisation and approximation of terminologies. The linguistic approximation of national Ukrainian legal terms to the EU terminology should be carefully considered to avoid their misinterpretation with the supranatural terms. The author emphasises the necessity to perform concept analysis between the terms in the EU and Ukraine simplified procedures and comes to the conclusion that despite having surface similarity to the EU term 'small claim', the Ukrainian term 'maloznachna sprava' is, in fact, a much wider concept. A range of translations of legal neologisms are described in the article, and the need to use a literal translation of the term is substantiated. As a result of the analysis of possible translation options and the ECtHR translation precedent, it is recommended that the term 'maloznachna sprava' should be translated as 'insignificant case' within the sphere of Ukrainian civil procedure. Keywords: legal translation, Ukrainian-English translation, small claim, insignificant case.

Comments of New Media Rights in Remedies for Small Copyright Claims Proceeding

Copyright Law and Science

Historical Background The European Union has adopted a number of regulations in the area of civil justice with the aim of simplifying cross-border litigation, reducing its costs, and providing legislative tools that will facilitate access to justice for businesses and consumers. The regulatory and procedural diversity among the national systems can lead to an ‘enforcement deficit’ within the internal market. In cross-border litigation, the diversity of civil procedure rules may result in significantly lengthier proceedings, disproportionate costs of court actions, and cumbersome procedures. In addition, it may also require the employment of legal practitioners in more than one jurisdiction. The situation is even more challenging for creditors when cross-border cases face more procedural requirements, while purely domestic claims benefit from rapid recovery instruments. Consumers and small- and medium-sized businesses are particularly sensitive to these hurdles related to crossborder litigation. This can easily dissuade them from taking action, thus limiting their access to justice, especially for uncontested and small value claims. The Conclusions of the Tampere European Council emphasised the need for improved access to justice, mutual recognition of judicial decisions, and greater convergence in civil law. For this purpose, the adoption of new procedural legislation for cross-border cases, including for uncontested and small value claims, was considered. The Council Draft Programme for Mutual Recognition underlined the priority of abolishing the exequatur for uncontested claims in order to promote the rapid recovery of outstanding payments and to simplify and speed up cross-border litigation in small claims, especially for consumers. The 2002 Green Paper argued that there is a need for EU procedures concerning these type of claims, pointing to the excessive costs, delays, and complexity of domestic procedures when the claims are not disputed as to their merits or are of small value. Further, as well as the available national solutions, the Paper investigated the possible features and procedural models that would be suitable for the new procedures. This formed the basis for the European Commission proposal for the adoption of two regulations in 2004 and 2005. The Regulations seek to address some of the bottlenecks in cross-border litigation (e.g. complexity, costs, lengthy proceedings, the need for legal representation in various systems, and enforcement) in order to create a level playing field in this area of law and to enhance effective enforcement.

Simplified Civil Procedure in Japan Japanese civil procedure covers four types of simplified procedures: ordinary proceedings in summary courts; actions on bills, notes, and checks; actions on small claims; and payment orders. Actions on small claims were newly introduced as civil procedure in 1996 to promote public access to justice. Summary courts have jurisdiction over these actions. The use of actions on small claims once increased to adjudicate a number of cases for the reimbursement of overpayment against consumer loan companies (Kabaraikin Suits). Although they have been used with less frequency recently due to the decrease of Kabaraikin Suits and increase of the use of other ADR procedures, they have a good reputation among their users and have successfully eased the burden on judges of district courts regardless of budget constraint. However, as more and more difficult cases are filed as actions on small claims, the burden of summary courts and court clerks seems to have increased. Providing information on simplified proceedings by courts and institutions of ADRs to citizens will solve this new problem by helping them to choose appropriate proceedings.

Small Claims, Big Problems: A Critical Look at the Copyright “Small Claims Court”

Copyright permeates so many areas of academic librarianship. That’s one of the reasons ALA and the Policy Corps take an active role in advocating on behalf of academic library users on the Hill as new copyright legislation is developed. We encourage readers to keep an eye on this column in 2022 for updates on legislation related to copyright and intellectual property. The CASE Act The Copyright Alternative in Small-Claims Enforcement Act of 2020, also known as the CASE Act, is a new law establishing a small claims system within the U.S. Copyright Office (USCO). Through this system, rightsholders will be able to bring claims of infringement against a party and, if they are found guilty of infringement, may receive up to $30,000 in compensation for the unlawful use of their copyrighted works. Three officers, appointed by the Register of Copyrights, will sit on the Copyright Claims Board (CCB) and review claims and make determinations regarding alleged infringement. While the system is described in the law as “voluntary,” it requires those who have claims brought against them to opt out of proceedings in a timely manner or face a default judgment, with limited options for appeal.

The Serbian 2011 Civil Procedure Code has widened the scope of small claims litigations substantially. According to the Article 468 all monetary claims not exceeding the amount of 3.000 euros shall be treated as small claims. This also applies to the lawsuits where claim is not money but the plaintiff stated that he/she would accept to be paid an amount of money not exceeding the amount of 3.000 euros. Finally, small claims shall also include lawsuits where claim is not money but the value of claim stated by the plaintiff doesn't exceed the amount of 3.000 euros. This means that proceedings started by declaratory or constitutive lawsuits can also be treated as small claims under the Article 468 Civil Procedure Code. In this way the legislator tried to expand the application of small claims provisions to more disputes that would now have to be resolved in summary proceedings. However, the Article 471 of Civil Procedure Code has to be taken into account as well. According to the provision of Article 471 small claims litigations shall be conducted only before lower (basic) courts. This rule would mean that no claim that falls into jurisdiction of higher court can be treated as small claim, regardless of the claim value. The colision between the value criteria and the criteria of subject matter jurisdiction leads to legal uncertainty. The parties to the proceedings have to know in advance whether their claim is going to be adjudicated as small claim or pursuant to the provisions governing regular proceedings. Furthermore, the wrong choice of procedural rules made by the first instance court is still not properly sanctioned by the provisions of Civil Procedure Code.

ONS and Intellectual Property

Using Existing Research Instruments: Copyright, Permission, and Fair Use

The article considers the legal analysis of copyright protection in an extrajudicial manner using the Internet. The author analyzes the procedure for terminating copyright violations that occur in the digital environment. It is established that the Law of Ukraine «On Copyright and Related Rights» No. 2811-IX normalized relations in a new way, including taking into account the development of the digital environment and in connection with the transformation of many copyright objects into digital form. It is established that the legislative changes relate to the procedure for copyright protection. One of the innovations was the updating of the procedure for out-of-court protection of copyright and related rights that are violated on the Internet (the so-called «TAKE DOWN NOTICE» procedure). It is proven that this procedure is important considering the fact that, as of today, almost all objects of copyright have moved to the digital environment, to the Internet, each website is a collection of digital content that includes various objects copyright (written works, photographic works, audiovisual works, etc.). It is also proven that the introduction of an updated procedure for out-of-court protection of copyrights that have been infringed on the Internet is a positive trend for proper legal protection of copyrights. It is substantiated that the specified out-of-court procedure can enjoy significant popularity and be useful to the subjects of property copyrights, provided that the procedure for publishing data about website owners, which is provided for by the copyright law, is established. It is established that the TAKE DOWN NOTICE procedure provided for by the copyright law contains certain debatable points, but its minor shortcomings or certain controversial provisions should not stand in the way of its wide application. It is also established that the participants of the TAKE DOWN NOTICE procedure are the subject of copyright, the provider and the owner of the website. The subject of copyright, for the protection of whose rights this procedure is initiated, is either the author or another subject of property copyright. It is substantiated that it is advisable to extend the extrajudicial procedure for copyright protection to the protection of moral rights (such as the right to a name, the right to preserve the integrity of a work, etc.). In the absence of relevant changes to the law on copyright, it is possible to apply the analogy of the law. It is concluded that unlike the previous copyright law, which allowed the use of the TAKE DOWN NOTICE procedure only for certain objects, such as audiovisual works, musical works (with or without text), computer programs, phonograms, videograms, programs (transmissions) of broadcasting organizations that are in electronic (digital) form, the new approach of the legislator expanded the list of objects of copyright and related rights that may be the subject of protection, and may refer to any object of copyright (and related rights), which falls under the concept of digital content. It is highlighted that a statement on the termination of copyright infringement in the digital environment is a position exclusively of the subject of the appeal (that is, the position of the right holder), which may be unfounded and unfounded. Therefore, the owner of the website (web page) can defend himself and prove the legality of the presentation of digital content on his website (web page) by providing evidence that he has the appropriate copyright for the use of this content or that he has permission for such use. It is established that the right holder may not always be able to identify the owner of the website or web pages, as the registrars, guided by the legislation on the protection of personal data and GDPR, do not publicly disclose information about natural persons - the owners of the website. It is stated that in the event of a dispute regarding the legality/illegality of placing certain digital content on the Internet, the right holder shall provide the hosting provider with confirmation of the opening of court proceedings on the protection of copyright for the object placed as digital content, in respect of which an application for termination of infringement. It is substantiated that submitting an application for the termination of copyright infringement in written form is possible only at the stage of submitting the application and receiving a response to it, because in the future all correspondence between the copyright holder, the owner of the website (web page), the provider will take place only in electronic form, because in the opposite case it is impossible to comply with short deadlines (24-48 hours) for taking certain actions, which are provided by law. It is proven that returning to the written form of correspondence within the framework of the TAKE DOWN NOTICE procedure is impractical. It is established that the owner of a website or web page is not liable for copyright infringement committed using the Internet, if within 48 hours after receiving a notice of termination of the violation, he has prevented access to the digital content referred to in the notice.

These remarks are a transcript of a talk that was given on October 14, 2016, at the Kernochan Center Annual Symposium at Columbia Law School. Session II addressed how international copyright treaties and FTAs affect national IP laws in the U.S. and elsewhere. Session Panelists: Krista Cox, Director of Public Policy Initiatives, Association of Research Libraries (ARL) Ysolde Gendreau, Professor, Universite de Montreal Eric J. Schwartz, Partner, Mitchell, Silberberg & Knupp LLP and Counsel to the International Intellectual Property Alliance Karyn Temple Claggett, Associate Register of Copyrights and Director of Policy & International Affairs, U.S. Copyright Office

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