- Where the nature of the items removed under the order makes this
appropriate, the applicant should be required to insure them... - The applicant should undertake not to inform any third party of the
proceedings until after the return date... - INJUNCTION AND DELIVERY UP OF INFRINGING ITEMS
Since an infringement of copyright is treated as a violation of a property right,
the usual order against an infringer is an injunction to stop the continuation of
the infringement. The defendant is usually also ordered to hand over infringing
stock to the plaintiff, so that the injunction is made effective and any continuing
temptation to infringe is removed.- An injunction and order for delivery up of infringing items may be
granted, even where the plaintiff would suffer no loss from a
continuing infringement
The Queen v. James Lorimer & Co. Ltd, (1984) 77 C.P.R. 2d 262 (Canada:
Federal Court of Appeal)[The Canadian government department in charge of anti-competitive practices
held an inquiry into the petroleum industry and produced a 7-volume report at
the end of it. The copyright of the report was owned by Government of Canada,
which sold the work for $70 but also gave away free copies to institutions such
as public libraries. Without the government’s authorization, the defendant
publisher condensed the report into a one-volume paperback, which it sold for
$14.95. The government claimed an injunction and damages for the
infringement. The first instance court found infringement but refused an
injunction or delivery up of existing stocks. Instead, it awarded damages
equivalent to an 8% royalty on the retail sale of the defendant’s books, both for
the past and the future.The government appealed. The appeal court agreed that the government was
entitled to an injunction and an order that the defendant deliver up the infringing
stocks in his possession.]MR JUSTICE MAHONEY for the Court:In exercising his discretion to refuse the injunctive relief, the learned trial judge found persuasive
the facts that the infringement had not adversely affected distribution and sales of the appellant’s
infringed work, nor adversely affected the revenue deriving from its sales, as well as the unusual
character of the appellant as a plaintiff. The characterization of the Crown as an “unusual
plaintiff ” lies, I take it, in his finding of fact that it was not much interested in income or revenue
from its work and not, I trust, in a generalization that the Crown is to be treated differently than
other litigants.The [Copyright] Act is clear. Infringement does not require that the infringing work compete in
the market-place with that infringed; it requires only that the infringer do something that the
copyright owner alone has the right to do. It follows that, where infringement of copyright has(^160) been established, the owner of the copyright is prima facieentitled to an injunction restraining