Remedies for infringement of copyright

Remedies open to an owner of copyright material for infringement of that copyright include damages, injunctions, account of profits, delivery up of infringing material and costs.

Where copyright material is licensed the remedies are available only to an exclusive licensee concurrently with the owner.

Where a non exclusive licensee of copyright has a licence in writing and the licence grants the licensee the right to the above remedies the licensee may also utilise those remedies.

Where the rights are concurrent with an exclusive licensee and an owner the issuing the claim may need to join the other in the proceedings depending on the circumstances.

Damages are not available against an innocent infringer. However, the innocent infringer must be able to show that they had reasonable cause for believing copyright did not subsist in the material.

Damages are based on putting the copyright owner in the position they would have been in where the infringement did not occur, i.e. the cost of the licence had the infringer paid the appropriate licence fee to the copyright owner/exclusive licensee.

Additional damages can be awarded under section 97(2) where the circumstances of the infringement are particularly flagrant (behaviour over and beyond copying).

An injunction is a possible remedy where damages are not enough.

An account of profits can be sought where the infringer knew or was innocent of the infringement.

Only one of the above remedies is available to the claimant (excluding costs).

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