Author: andy-lee

A few weeks ago, I posted about the High Court's summary judgment decision in Hasbro v SConnect. This week, the Court handed down its consequential judgment, dealing with the scope of the final relief. A copy of the judgment is below. Brandsmiths acted for Hasbro.

The principal issue was the extent of the injunction. The findings of copyright infringement had been established by reference to a representative sample of Wolfoo videos. Our case, however, was that the evidence demonstrated systematic infringement across the wider Wolfoo catalogue and that limiting relief to the representative sample would not adequately protect Hasbro’s IP rights.
 
The Court accepted that submission. It held that the representative sample was genuinely representative, that it would have been entirely disproportionate to analyse more than 30,000 videos individually, and that it was appropriate to draw wider inferences from the sample. On that basis, the Court granted an injunction extending to the entire Wolfoo catalogue requiring its removal, rather than being confined to the representative videos considered during the proceedings.
 
It seems to me that is one of the most interesting aspects of the judgment but properly reflects the need to give a broad scope of protection to IP rights. Had the Court confined relief to the representative samples, it would have the perverse consequence that large-scale infringers could effectively benefit from the sheer scale of their infringement by arguing that only the works individually analysed should be the subject of injunctive relief in circumstances where it would have been impossible or hugely costly for a Claimant to analyse every example by reason of the scale of a Defendant’s activity. This judgment demonstrates that, where representative sampling is properly undertaken and the evidence justifies it, the Court is prepared to grant relief that provides effective protection for the rights holder rather than relief limited by the practical impossibility of analysing every individual work.
 
The territorial scope of the injunction is also noteworthy. The Court granted relief extending across the UK, the EU and approximately 166 countries party to the relevant international copyright conventions, giving the order what is, in practical terms, worldwide effect.
 
More broadly, I think the decision also reflects the willingness of the English courts to hear disputes with a substantial international IP dimension and, where appropriate, to grant effective relief extending beyond the UK in order properly to protect intellectual property rights. In an increasingly digital world, where infringement routinely crosses borders, that is an important feature of the English courts' approach. 
 
I suspect this judgment will become a useful authority in future large-scale online copyright disputes where representative sampling provides the only practical means of proving infringement across substantial bodies of content.