Principles of Copyright Law – Cases and Materials

155

B. ENFORCEMENT

The usual remedies available for copyright infringement are:

1. Provisional measures


2. Injunction and Delivery Up


3. Compensatory damages


4. Punitive damages


5. Account of profits
   
   
   1. PROVISIONAL MEASURES
   
   
   
   

Typically, a plaintiff will want to proceed before trial to obtain a pretrial injunction

and an order to seize documents and infringing goods from the defendant’s

premises.

Under the detailed provisions in TRIPs Art. 50, to obtain such orders, the

applicant must show, through sufficiently certain “reasonably available

evidence”, that

(1) he is the right holder, and

(2) his work is being, or is about to be, infringed.

He may have to provide security to compensate the defendant if the order has

been wrongly granted or executed abusively. The defendant must have the right

to a prompt hearing if he wishes to have the order revoked or altered. The order

ceases effect, on the defendant’s request, if the applicant does not initiate

proceedings leading to a decision on the merits “within a reasonable period” as

determined by the relevant judicial authority. Without such a determination, final

proceedings must be started within 31 calendar days of the provisional

measure.

• A pretrial injunction may be granted if the plaintiff shows that

(i) there is a serious issue to be tried,

(ii) the plaintiff will be irreparably harmed if the defendant is

not stopped pending the full trial, and

(iii) the balance of convenience favours such an order.

Pretrial injunctions are commonly sought once an infringement action has been

commenced. The full trial may not occur for some months, sometimes even

years. It is therefore important for the plaintiff to have the infringer stopped

meanwhile; it is equally important for an innocent defendant not to have his

business wrongly interrupted or even shut down. The court must balance the

interests of both parties to reach the fairest result, remembering that the

evidence will not all be available at an early stage and that the picture at trial

may look very different. The various tests used by courts in different countries

may not be expressed identically, but the following case is typical of the

approach taken in many countries.

IV. INFRINGEMENT AND ENFORCEMENT