Fact Sheet on Copyright Remedies

An Act to Amend the Copyright Act (Bill C-32), adopted in April 1997, introduced new remedies for creators of all kinds of works. These remedies, which came into force on October 1, 1999, are designed to provide stronger deterrents against copyright infringement and to better compensate copyright owners for losses suffered because of infringement.

Because the extent of infringement is particularly difficult to prove, copyright owners were often inadequately compensated for losses suffered as a result of infringement of their rights. Bill C-32 introduced that guarantee a minimum award once infringement is proven, and which should serve to deter future infringements.

In order to more effectively halt infringements, the amendments also include a "wide injunction" which covers a broader range of copyright protected materials than the injunctions previously available in such cases.

Further, in some circumstances, copyright owners will now be able to avail themselves of summary procedures which are more expedient and less expensive than full court actions.

Interested parties

The remedies are available to all types of copyright owners including authors, composers lyricists, performers, producers of sound recordings and audiovisual works, as well as software and multimedia businesses.

1) Statutory Damages

What are statutory damages?

In respect of the infringement of copyright, a copyright owner may choose to receive "statutory damages." Statutory damages allow the copyright owner to receive an amount between $500 and $20,000 in respect of each work or subject matter infringed by the defendant.

Why did the Bill introduce a statutory damages regime in the Copyright Act?

A copyright owner who commences proceedings for infringement must prove not only the infringement, but also the losses suffered as a result. However, it is often difficult, sometimes impossible, to prove such losses because evidence as to the extent of infringement is usually difficult and/or expensive to find. Statutory damages alleviate this difficulty by guaranteeing a minimum award of damages once infringement is established.They also ease the evidentiary burden on the plaintiff in proceedings for infringement, deter future infringements, reduce the cost of litigation and encourage the parties to settle matters out of court.

How is the amount of statutory damages determined?

I - General Rule

In respect of each work or subject matter infringed, the court may award a sum between $500 and $20,000. The precise sum awarded is entirely within the court's discretion. However, the court must have regard to the following circumstances: the good or bad faith of the defendant; the parties' conduct before and during the court proceedings; and the need to prevent other infringements of the copyright in question.

II - Particular Cases

Innocent Infringer
Where a court is satisfied that a defendant infringed copyright innocently, it may lower the minimum amount of statutory damages to $200 per work or other subject matter infringed. A defendant is considered to be innocent if the defendant was not aware and had no reasonable grounds to believe that copyright was infringed.

Multiplicity of works on the same format
When a medium contains more than one copyrighted work or subject matter and if the application of the general rule (subsections 38.1(1) and (2) of the Bill) results in an award of statutory damages that is disproportionate to the seriousness of the infringement, the court may award less than the minimum amount specified in those provisions. For example:

In the context of digitization, media such as CD-ROMs contain increasingly large numbers of works or subject-matter in which copyright subsists. However, the application of the general rule ($500 to $20,000 per work infringed) may result in awards of statutory damages that are clearly disproportionate to the copyright owner's losses. In such instances, the court may depart from the general rule and reduce the amount at its discretion.

A licence to play taped music at a wedding might cost $60. The damages to be paid under subsection 38.1(4) would therefore range between $180 (3 x $60) and $600 (10 x $60). The judge would determine the appropriate award within these two values based on the following factors: the good or bad faith of the defendant; the parties' conduct before and during the court proceedings; and the need to prevent other infringements of the copyright in question.

Statutory damages may not be awarded against educational institutions. In addition, statutory damages are not available in respect of infringements arising from the parallel importation of works or other subject matter or from dealings with such imported works or other subject matter.

Are there any other countries with statutory damages regimes?

The United States, Israel, Russia and Germany (for certain uses) have statutory damages regimes in their copyright legislation.

2) Wide Injunction

In respect of copyright infringement, an injunction is an order made by a court ordering someone to refrain from carrying on the activities which constitute the infringement. The "wide injunction" introduced in Bill C-32 allows a court to grant an injunction, not only in respect of a specific work, but also in respect of works later acquired by the plaintiff, even though he or she was not, at the time the proceedings were commenced, the owner of the copyright or the person to whom an interest in the copyright has been granted; and similarly, in respect of works that did not exist at the time the proceedings were commenced. In other words, the wide injunction should prevent infringement of copyright in any of the works in which the plaintiff currently has or will obtain a copyright interest.