Infringement of copyright may incur civil and criminal liabilities. The most serious infringements carry the possibility on conviction on indictment of imprisonment up to 10 years and an unlimited fine.
A person who holds copyright which has been infringed has a number of prospective remedies. He may be awarded damages to compensate for loss suffered This may be by way of lost royalties or lost sales. In the case of primary or direct infringement, damages will greatly be awarded. Damages will not usually be awarded in respect of secondary infringement if the defendant did not know and had no reason to believe that there was an infringement of copyright.
In measuring the economic loss regard will be had to loss of profits, loss of royalty fees that would hypothetically have been payable, reputational and other loss. The hypothetical royalty fees are commonly used as the basis for damages. Additional damages may be awarded where the breach is flagrant.
Account of Profit
The copyright owner may claim an account of profits in addition to or instead of damages, provided that there is no double recovery. The purpose is to prevent unjust enrichment. Effectively, the account of profits seeks to disgorge the infringer of the gain made. This may be significantly more than the loss which has arisen to the copyright owner.
An account of profits is not available in respect of secondary infringement unless the person concerned had reason to believe that there was copyright in the work.
In the area of IP, so-called Norwich Pharmacal orders (pre-trial discovery orders) are commonly granted. They require disclosure of details of customers suspected of more serious infringements. The courts will have regard to the right of the copyright holders the right of subscribers to data protection and privacy.
An injunction may be issued by a court to stop infringing copies being distributed. It may require the removal or destruction of something which is being used to make infringing copies. Injunctions are not usually granted if damages are a sufficient remedy.
The court may order that infringing copies as well as things used to make or adopt them are delivered up. An order may be made for their disposal.
The information Society directive provides that member states shall ensure that rights holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe copyright and related rights use. States may not place a general obligation on intermediaries to monitor information over the network. The remedies and enforcement for IP rights shall be fair and equitable and shall not be unnecessarily complicated and burdensome.
The Digital Economy Act 2010 provided a means of combating online infringement of copyright. The original intention was that when a threshold, pursuant to an Ofcom code was exceeded, the copyright owner could apply to court for an order identifying serial infringers and take action against the Internet Service Provider would be obliged to identify the applicant copyright owner.
An agreement was entered between copyright bodies and Internet service providers by which repeat infringers would be subject to sanctions with a view to changing their behaviour in relation to copyright infringement. The sections which provided for injunctions to block websites were repealed by the Deregulation Act 2015 on the basis that the existing copyright legislation would suffice.
Action has been taken by way of injunction blocking certain websites hosting which facilitate infringement. In particular injunction applications have been taken against infringing providers of TV and films online services.
A copyright owner is entitled to seize offending articles. This does not include a right to enter business premises but could be used against market or street traders. There is criminal liability for a persons infringing. A Court may order delivery up or destruction of infringing copies. A Court may make an order preventing importation of infringing copies.
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