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IV. INFRINGEMENT AND ENFORCEMENT
further infringement. ... The onus is on the infringer to establish grounds upon which the court
may properly exercise its discretion against granting such relief. ... Those grounds must lie in
the conduct of the copyright owner, not in the conduct or motives of the infringer. The fact that
the copyright owner has suffered no damages as a result of the infringement is not a basis for
refusing an injunction. ...
A computation of damages based on an appropriate royalty is acceptable where the copyright
owner does not prove he would have made the sales the infringer did. However, I find no
authority for requiring a copyright owner to acquiesce in a continuing infringement against
payment of a royalty. That is tantamount to the imposition of a compulsory licence. In the
absence of legislative authority, the court has no power to do that.
I am of the opinion that the learned trial judge applied wrong principles and erred in law in
denying the relief [of injunction and delivery up of existing stocks] and substituting for that relief
a royalty on the future sale of infringing copies.
- DAMAGES
Under TRIPs Article 45.1, a copyright infringer must pay the copyright owner
“damages adequate to compensate for the injury the right holder has suffered
because of the infringement”. Such damages are not mandatory unless the
defendant infringed copyright “knowingly, or with reasonable grounds to know”
that he was infringing. Many states, optionally, allow damages against even
innocent defendants.
D. Vaver, Copyright Law(Irwin Law, Toronto: 2000), pp. 264-7:
1) General Principles
Damages for infringement track those for tort generally. The claimant should receive monetary
compensation (general and aggravated damages) restoring it to the position in which it would
have been had the infringement never occurred. The claimant’s present economic position is
compared with that hypothetical state; the difference – excluding reasonably avoidable and
“remote” losses (i.e., those not flowing naturally and directly from the wrong) – is what the
infringer owes. But every case will have its own peculiarities. The object is to compensate this
claimant – not some other claimant, who could have lost more or less from the same
infringement – for the particular wrong...
Every infringement is a separate wrong. A person who, without authority, scans an unpublished
photograph into her computer and posts it on her Web site may infringe the copyright owner’s
rights of reproduction, first distribution, and telecommunication. The copyright owner should
technically get compensation for each wrong. A sense of proportion must, however, be retained,
and double or overlapping recovery should be avoided. Some complaints are trivial and deserve
no award: overcompensation is as much a vice as undercompensation....
2) Compensatory Damages
The following guidelines may help to assess damages as compensation.
