There are a number of remedies available for copyright infringement and this article looks at them.
An injunction is a Court order requiring a person to do an act or prohibiting them from doing an act. Normally in a copyright infringement claim the copyright owner will seek an injunction restraining any further copyright infringement.
Normally the obtaining of an injunction in a copyright infringement case is a 2 stage process, which begins with the “Claimant” (the person bringing the claim) applying for an interim injunction. An interim injunction prohibits the “Defendant” (the person against whom the claim is brought) from carrying out any further copyright infringement pending the trial of the matter.
In order to obtain an interim injunction the Claimant will need to satisfy the Court that there is a serious issue to be tried and that damages would be an inadequate remedy. An interim injunction will not normally be granted where a Defendant has pleaded a Defence of fair dealing, where the Claimant has delayed in applying for the interim injunction, where an injunction would not be in the public interest, where the Claimant has acquiesced in the infringement, where the application has been made prematurely, or where there is substantial doubt as to whether the Claimant will succeed in its claim for copyright infringement.
In cases of urgency or where there is a likelihood that the Defendant will hide or destroy evidence of the copyright infringement the Court may grant an interim injunction without the Defendant having notice of the application.
If an interim injunction is granted the Court will give directions for the case to proceed to trial. At the trial the Court will consider whether the interim injunction should have been granted in the first place and whether the interim injunction needs to be extended. If the Court is satisfied that the interim injunction should be extended it will make a final injunction.
If the Court takes the view that the interim injunction should not have been made the Claimant will normally be liable to pay the Defendant damages for any losses suffered as a consequence of the interim injunction having been made.
The Courts will not grant an injunction to restrain an infringement of copyright in a foreign country unless EC Council Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters applies.
Where there is no likelihood of a repetition of copyright infringement, the Court may grant a declaration that there has been a copyright infringement instead of an injunction.
Normally a Claimant in a copyright infringement case will seek “damages” (compensation) from the Defendant, perhaps in addition to an injunction.
Where a Claimant seeks damages for copyright infringement they do not have to show that they have actually suffered any loss. However, where a Claimant cannot show that they have suffered actual loss the Court will normally only award them nominal damages.
When deciding how much to award a Claimant by way of damages in a copyright infringement case the Court will normally consider by how much the copyright has been depreciated as a consequence of the infringement. Any sales which have been lost by the Claimant as a result of the infringement will be taken into account as will any damage to the Claimant’s trade resulting from, for example a Defendant selling the Claimant’s work at a cheaper price. In some cases the Court may consider what royalty the Claimant should have received or how much the Defendant would have had to pay for a licence to reproduce the Claimant’s work. The Court may also take into account the flagrancy of the copyright infringement. If the copyright infringement is shown to have been innocent, however, the Court may not award any damages.
It is open to a Claimant to elect to receive the profits made by a Defendant as a result of the copyright infringement instead of damages.
Often a Claimant in a copyright infringement case will seek an Order for “delivery up” of the infringing material. Where an Order for delivery up is made the Defendant is ordered to return the material to the Claimant or to another person.
Where an Order for delivery up is made the Court will normally order that the infringing material be destroyed.
For more information on:
- Prevention of importation
- Undertaking to take licence of right