Remedies (copyright infringement)

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​What it is

Remedies are awards that a court can make to compensate a copyright owner if their copyright has been infringed. These can be financial in nature but also include injunctions designed to prevent further infringement from occurring.

Put another way: putting things right when someone uses your copyright without permission.

When it applies

The right to a remedy arises when one party (the infringer, who is known as the defendant in legal proceedings) infringes the rights of another party (the copyright owner, known as the claimant in legal proceedings).

These rights may be set out in a contract between the parties (e.g. an assignment agreement) or arise as a matter of law (e.g. under the Copyright, Design and Patents Act 1988).

Remedies are awarded at the conclusion of a successful court proceedings, or other dispute resolution procedure. Alternatively, the parties may negotiate a settlement between themselves before the dispute reaches a full court hearing.

Who/what it applies to

Remedies for copyright infringement are owed by the infringer to the copyright owner. The copyright owner could be the original author of the work or any subsequent owner (the assignee) if the copyright has been assigned.

The right to a remedy (for copyright infringement) applies to any breach of the copyright owner’s exclusive rights. For example, when a third party copies, performs or publishes (among other things) the copyrighted work without the permission of the copyright owner.

This glossary entry is concerned with remedies for copyright infringement in a civil (individual) action. However, the right to a remedy arises in a range of situations. For example, the original copyright owner will have a breach of contract claim against an assignee (the person acquiring the copyright) if the assignee fails to pay the sums due under an assignment agreement.

Core principles

1. Remedies are awarded to compensate a party whose rights have been infringed.
2. The claimant (copyright owner) will have to demonstrate that copyright exists in the work, that the term of that copyright has not expired, and that they are the owner of that copyright (whether as original author or by way of assignment).
3. Liability arises regardless of the intention of the infringer. It does not matter whether they knew they were infringing copyright (although this might influence the nature and extent of any remedy awarded – see key legal considerations below). 
4. The court may consider all the circumstances when establishing a remedy – including the flagrancy of the infringement and any benefit accruing to the defendant as a result of the breach.
5. A claim for copyright infringement must be made within six years of the date of infringement (specific rules apply for calculating this period and legal advice should be sought). If a claim is not made within this time, it will be time barred, meaning that a claim will not be allowed and remedies will not be awarded.

Why it matters (risks/opportunities)

Risks

• There can be uncertainty as to both the likelihood of success of any legal action and the exact nature and extent of any remedy a court may award.
• Legal enforcement is expensive and, even if successful, the other party may not have the means to pay.
• A wrongdoer can suffer reputational damage for their infringing conduct, as well as the legal obligation to remedy.

Opportunities

• The risk of remedies being awarded helps provide security that any agreement between the parties to an agreement will be performed.
• Remedies can be awarded to prevent ongoing or future breaches.
• There are a range of remedies available. This flexibility helps to ensure the remedy awarded addresses the true damage caused e.g. accreditation, injunction or financial remedy.

Key legal considerations/elements

The main remedies awarded for copyright infringement are:

• Injunction – a common remedy for copyright infringement is an injunction to stop the offending conduct. The injunction may relate to the whole or part of the conduct in question.
• Interim injunctions – a court may grant an interim injunction (an injunction pending the outcome of a court hearing) if the claimant demonstrates an immediate need to protect their copyright from the alleged infringement and that damages alone would be an insufficient remedy.
• Damages – this is a monetary payment designed to compensate the claimant. Often, it's calculated to reflect the decreased value of the copyright, loss of reasonable royalties or, in some cases, to reflect the harm caused to the copyrighted work. Damages are not payable (although other remedies are still available) if the infringer can prove that at the time of the infringement they did not know, and had no reason to believe, that copyright existed in the work.
• Account of profits – a return of the profits wrongfully received by the infringer as a result of their infringement.
• Delivery or destruction of infringing work – a person may be ordered to destroy or deliver (to the copyright owner or other person ordered by the court) any copies of an infringing work.
• Award of costs – the court may make an order for repayment of the copyright owner’s costs (in whole or in part) in issuing proceedings against the infringer.

Key commercial considerations/elements

Be clear on your contractual and legal obligations to avoid an inadvertent breach – remedies can be significant.

Remedies are not always financial. Sometimes a good result is to ensure due accreditation for work that has been improperly used or for a public admission of wrongdoing.

A claimant will need to demonstrate the link between the copyrighted work and the infringing conduct as well as the relationship between the infringement and any damages claimed. Keep copies of any contract and correspondence, take photographs of unauthorised use and get details of potential witnesses.

It's helpful to provide evidence of loss. Make sure you keep records of costs incurred or revenue lost to support your claim, this could include evidence of the royalties that may have been made but for the infringement.

Consider remedies before the breach arises. When entering into a contract think about the likely impact of infringement and ensure that the contract provides for an adequate remedy before the problem arises.

FAQs

Do I have to notify someone if I plan to bring legal proceedings against them?

Ordinarily, the rules governing litigation require that the parties take reasonable steps to settle a dispute themselves. This would include notifying the other party of any suspected infringement, through a letter of claim, and asking them to remedy it prior to issuing legal proceedings. This is a complex area and legal advice should be sought.

Do I need a written contract to be able to claim a remedy?

No, remedies can arise out of a written contract but do not need to. For example, the claim may relate to an implied licence or arise as a matter of law e.g. breach of the Copyright Design and Patents Act 1988.

Is it always necessary to go to court?

No, some agreements include provisions for ‘alternative dispute resolution’ mechanisms such as arbitration. In addition, parties will often agree to settle a claim before it gets to court. That is, they negotiate the form of remedy between themselves, avoiding the uncertainty and costs of a full court hearing.

Does it help if I put my name on my work?

Yes. There is a presumption in the legislation (Copyright Design and Patents Act 1988) that if a name purporting to be that of the author is included in the work, then until the contrary is proven, that person is the author and therefore entitled to claim for any infringement.