'Success’ in IP enforcement actions: and the consequences for the Creative Industries

Abbe Brown, “Success’ in IP enforcement actions: and the consequences for the Creative Industries” 

Legal, societal and technical developments across jurisdictions have led to substantive changes in the remedies which can be obtained after bringing a successful infringement action, in the willingness of courts to grant these orders, and against those in respect of whom orders may be sought.  Some notable instances follow. The decisions and bases for them cover a range of laws, countries, industries and infringing scenarios. The focus of this paper is to assess the extent to which there are conflicting and contrasting themes across these decisions. Particular regard will be had to the extent to which IP rights should confer a right to control (see (Bell and Parchomovsky 2014, Firth 2015, Claeys 2015); do these approaches overly extend or limit the power of IP owners; the consistency of these new approaches with Part III TRIPS, human rights, competition and emerging trade agreements; and do they indicate inappropriate judicial creativity? This will be done through the lens of the potential impact of these decisions on one particular sector: Creative Industries. These industries are of increasing value in society (both cultural and economic). A wide range of IP rights and forms of information protection underpin and are relevant to the core activities in these industries, both in terms of encouraging and stifling development.  Finally, this paper will consider if there is a place or need for a different approach to be taken to remedies in this sector, across jurisdictions.