Remedies for infringement
As we will see, the remedies are essentially the same for all intellectual property rights:
- an interdict restraining the infringing conduct;
- an award of damages — that is, to compensate the copyright owner for any financial loss actually suffered as a result of the infringement;
- instead of damages, an award of a reasonable royalty that would have been paid by a licensee (in other words, for a licence to do what the defendant did);
- an order that all infringing copies of the work be handed over to the copyright owner, as well as all discs, storage media and the like used to make the infringing copies.
Read section 24(1) of the Copyright Act.
A note about the reasonable royalty: it is not something to scoff at. Licensees pay big money to use popular songs, for example, in their advertising. Chances are, the wider the audience reach of the defendant’s use of the song is, the greater the royalty that is payable. If you use a song, say, on your website, it becomes accessible by an audience all over the world (unless you geo-lock the site) and then the potential licence fee would be even bigger.
If the defendant’s infringing use has been particularly flagrant (meaning blatant, unashamed) the Court can order the payment of additional damages. In assessing the amount of these so-called punitive damages, the judge will take into account any benefits the defendant received from the infringing conduct.
Read section 24(3) of the Copyright Act.
However, there is an overriding criterion for the award of damages. If the defendant can prove that, at the time of the allegedly infringing conduct, he was not aware (and had no reasonable grounds for suspecting) that copyright subsisted in the plaintiff’s work, the plaintiff will not get any damages at all.
An exclusive licensee has the same remedies available as those described above.
Read section 25 of the Copyright Act.
In legal proceedings for the infringement of copyright, the plaintiff is assisted in the proof of his case by certain presumptions that the statute provides. If you are about to become involved in legal proceedings (whether as a plaintiff or a defendant) check with an expert about these presumptions. As mentioned, SAIIPL can provide contact details of a specialist copyright lawyer close to you — www.saiipl.co.za.
Read section 26 of the Copyright Act.