Copyright Breaches
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This articles looks at the various remedies available for infringement of
copyright.
The remedies available under the Act are the same as for any other property
right. This includes:
(1) Damages
The court may award the Claimant damages to compensate for the copyright
infringement caused by the Defendant. The amount payable may be calculated by
estimating the amount of royalty payments lost owing to the infringement.
(2) Injunction
The Claimant can seek an injunction which (with the backing of the court when
granted) will order the cessation of the infringing activity. Once the order is
in place if the Defendant breaches the order it shall be held in contempt of
court which may lead to a criminal sanction.
We have in the past also sought injunctions for clients where we have had
reasonable grounds of a suspected or anticipated infringement. By way of an
example, an interlocutory injunction can be sought from the court provided that
one can set out to the court sufficient grounds for the granting of such an
order (based on reasonable chances of success at a final hearing), the court
will impose the order until the full hearing of the action. The only drawback
for clients is the undertaking that must be given when the order is sought that
compensation will be given to the Defendant for losses sustained in the event
that the infringement action fails.
(3) An account of profits
The court may order the Defendant to pay the Claimant any profits generated
by virtue of the infringement.
(4) Order for delivery up
The Claimant can seek an order from the court for delivery up and/ or
destruction of the goods.
Notwithstanding the above, the court is free to make additional orders,
taking in to account the following circumstances into account: the flagrancy of
the infringement, and any benefit accruing to the Defendant by reason of the
infringement.
(5) Criminal Sanction
The criminal offence of piracy can also be pursued through the criminal
courts.
(6) Ancillary Relief
The court may grant an order that the infringing materials be destroyed or
delivered to the Claimant.
(7) Unaware of Copyright Protection
If the Defendant can convince the court that at the time of the infringement,
it did not know, or have a reason to believe that copyright subsisted in the
work, the Claimant may not be entitled to damages!
Conclusion
The most common remedy is damages, the normal level of which is the amount by
which the infringement has depreciated the work as a ‘chose in action’ for
example the damage done to future licensing prospects.
It is generally stated that the other three remedies will only be available
if damages are not thought to be an adequate enough remedy. However in terms of
copyright infringement, injunctions are a more common remedy than in other types
of property disputes. This is as a result of to the greater risk of damage
within a shorter time which exists due to the speed at which the market for
products such as computer programs moves on.
About the Author
Lawdit Solicitors offer services and
advice for litigation, commercial contracts, Intellectual Property and IT legal
agreements. We are experts in commercial law with a heavy emphasis on
Intellectual Property, Internet and e-commerce law. Lawdit is a member of the
International Trademark Association, the Solicitors' Association of Higher Court
Advocates and we are the appointed Solicitors to the largest webdesign
association in the world, the United Kingdom Website Designers Association.
