Copyright Guide: Liability

Generally the breach of copyright gives rise to civil liability only. This means that the copyright owner may be entitled to damages or other civil remedies such as an injunction. However in cases where there is an intention to "exploit for commercial purposes" or actual "commercial exploitation" of infringing copies there could be criminal liability involving a heavy fine or a term of imprisonment or both. Civil and criminal liabilities are explained in further detail below.

CIVIL LIABILITY

A. Injunction

If you are about to infringe or in the process of infringing copyright, the court may grant an injunction (restraining order) against you to restrain you from committing that infringing act. A failure to comply with the injunction order would put you in contempt of court.

AND EITHER

B. Damages or Account of profits

The court may award damages against you to compensate the copyright owner for his loss.
If the infringement is flagrant and you have benefited from it, the court may award additional damages against you.
The court will not award damages against you if you are not aware or have no reasonable grounds for suspecting the act was an infringement of the copyright but the copyright owner is entitled to an account of profits.

OR

The copyright owner can seek an order that you pay over the profits that you have made from the infringing act.

OR

The court may order you to pay statutory damages where a plaintiff has difficulty in proving actual losses suffered as a result of the infringement, or getting an account of profits from you.

CRIMINAL LIABILITY

Without going into specific details it is sufficient if you know that the following will attract criminal liability:

• Making for sale or hire, selling, possessing or importing for sale and other commercial purposes, or distributing for purposes of trade infringing material.
• Willfully committing a right infringement for commercial advantage.
• Providing a service whereby a work is communicated to the public without the copyright owner's authority (e.g. providing illegal streaming services) or engaging in activities relating to devices which would facilitate access to works communicated to the public without the copyright owner's authority (e.g. dealings with illegal set-top boxes).
• Making or possessing an article specifically designed for making infringing copies of works.

A fine of up to $200 000 or imprisonment for up to five (5) years or both could be involved.

Under certain circumstances, criminal liability may be attracted even if the act is not done for the purpose of trade.

In this respect you should remember that if you are in possession of five (5) or more infringing copies it is presumed that you had the copies for sale (as stated in Infringement).

WHO IS LIABLE?

You will be liable for your own acts of infringement. If your infringement was in the course of your employment at SP, then SP would also be liable.