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Copyright Breaches

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Lawdit Solicitors - Expert Author

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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.



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Article Published/Sorted/Amended on Scopulus 2008-05-11 18:44:11 in Legal Articles

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