Damages for Copyright Infringement

Some information from the ACCESS COPYRIGHT course:

A court may award damages to a plaintiff even if no profit was made by the infringer.

A copyright owner whose works are not licensed by a collective such as Access Copyright or Copibec (but are eligible to be) is limited in what he may collect for illegal photocopying by educational institutions, libraries, archives and museums to the amount of royalties he would have received if he were an affiliate of a collective such as Access Copyright or Copibec.

Statutory damages allow a copyright holder to collect specified damages as set out in the Copyright Act, as opposed to actual damages resulting from the infringing activities. A copyright owner may request at any time before a final judgement in a court case, in lieu of damages and profits, statutory damages of $500-$20,000, in respect of each infringed work or other subject-matter.

A court may award "such part of the profits that the infringer has made from the infringement as the court may decide to be just and proper." This account of profits would be in addition to "regular" damages, unless such damages have already taken account of the profits.

A copyright violator must give the copyright owner all infringing copies of a work or other subject-matter, and all plates used to produce the infringing copies.

When an infringement case commences, several things must be proven. The Copyright Act sets out two presumptions: that copyright subsists in a work, and that the author of the work is the owner of copyright in that work. A defendant who wishes to prove otherwise has the burden of proof of doing so.

Once the existence of copyright and proper ownership of the work or other subject-matter are established, the plaintiff must prove that a violation took place. Once the plaintiff has presented the case, the defendant has an opportunity to prove that he has not infringed copyright.

The following activities knowingly done with illegal copies (copies of copyright-protected works or other subject-matter made without the permission of the copyright owner) may be criminal offenses: making for sale or rent; selling or renting, or by way of trade exposing or offering for sale or hire; distributing for the purpose of trade, or to such an extent as to affect prejudicially the owner of the copyright; exhibiting in public, by way of trade; and importing for sale or rent into Canada. A violator may be subject to a maximum fine ($25,000 or $1 million) and to a maximum prison term (six months or five years).

It is an offence to knowingly make or possess any plate for making infringing copies, or to cause a work or other subject-matter to be performed in public for private profit, without authorization. The fines and imprisonment terms are the same as above.