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03 Jan

IP 1.9 REMEDIES FOR INFRINGEMENT OF COPYRIGHT

REMEDIES

After the jurisdiction of the court and the parties have been decided, the courts may consider the remedies it may grant.

Who can sue? The owner of copyright.

Who may be sued? Individuals or companies that are allegedly infringing the copyright in a work.

The remedies may be civil or criminal.

Civil remedies include:

  • Injunction
  • Damages
  • Accounts for profits
  • Conversion rights.

INJUNCTION

This appears to be the most commonly sought remedy. It is an equitable order of the court restraining the commission or continuance of a wrongful act.

In American Cynamid V. Ethicon ltd. The court restated the rules governing the grant of an injunction. Some of which include:

  • Where damages would not be an adequate remedy.
  • In a situation of real urgency.
  • There must be a substantial issue to be tried.
  • Probability that damage may occur if an injunction is not granted.
  • It may be given ex parte it may be interlocutory of final.

An interlocutory injunction is granted pending the determination of the case. To maintain the status quo so that the final judgment may not be ineffectual.

Section 16 provides that no injunction shall be given in respect of a partly completed building.

DAMAGES

This remedy was described in Yemitan V. Daily Times as “Important but difficult” because the courts are faced with ascertaining the quantum of injury. It is impossible to ascertain it with arithmetic precision. In this case, the court took into account, the flagrancy of the defendants.

In an action for damages, the owner seeks to recover what he has lost due to the infringer’s act. The loss of profit which he would otherwise have made.

Section 16(4) provides that the court may take into cognizance the flagrancy of the infringement. If the infringer can establish that he did not believe nor have reason to believe that his act amounted to an infringement the author or owner of the copyright is only entitled to an account for profit. As such, the innocent infringer is not punished nor is he allowed to benefit from his wrongdoing. This follows from the principle that Ignorance of the law is not an excuse.

ACCOUNTS FOR PROFIT

This is an alternative (rather than an addition) to the remedy of damages. The plaintiff must choose either damages or accounts for profits. Not both. This is the most useful remedy because it is also recoverable from an innocent infringer. It takes from the wrongdoer all the profit he has made from the infringement and gives it to the wronged.

CONVERSION RIGHT

Conversion is the intentional dealing with goods in a manner inconsistent with the right of the true owner. Section 18 provides that the infringing copies, machines, tapes, equipment or contrivances used are deemed to be the property of the owner who may take proceeding for the recovery thereof.

Criminal remedies.

Section 20. Because the individuals have to be protected from poor quality materials and counterfeit goods.

After intention has been proved,

Anybody that:

  • Makes or causes to be made for sale hire or trade
  • Imports more than two infringing copies
  • Possession of duplicating machines or utilities
  • Distributing for the purpose of trade
  • Possessing other than for private use, infringing copies.

With regards to a work in which copyright subsists, is in violation and 10k or 50k or 100 for each copy.

All goes to show that the provision is against competition and annexing of fruits of another.

The accused may be exculpated where he can prove that he did not know that his conduct amounted to an infringement. The court may order the infringing copies to be destroyed.

Note that this also applies to performer’s right.

Section 21 criminalizes the dealing in the duplicating machines used for infringement.

FACILITATING INFRINGING ACTIONS.

Can be seen as an order for inspection and seizure upon reasonable suspicion that infringing articles are in the premises of the defendant. Referred to as the Anton Piller order… (confirm the spelling). Originating from the case of Anton Piller K.G V. Manufacturing Processes ltd. This has been followed in Nigeria with the case of Ferodo Ltd V. West Germany and Nigerian Trading co and the case of Ferodo V. Unibros Limited.

This has been accorded statutory backing in Section 25 of the Copyright Act.

The procedure (summarized).

  • The plaintiff applies to the court ex parte and in camera.
  • For an order permitting him to inspect the defendant’s premises for infringing materials (and seize where available).
  • Upon reasonable suspicion that there is in any premises or house equipment or plates, and so on… intended to be used for making infringing copies.
  • He shall be accompanied by an officer not below the rank of assistant superintendent of police.
  • Lord denning posits; that the effect is such that; if the defendants were forewarned, there is a grave danger that vital evidence will be destroyed. And the order should be granted when such inspection would do no real harm to the defendant. This is true because the infringer is taken by surprise and there is no time to hide or destroy the infringing copies or alert his partners in crime.

The permission of the accused must be obtained before actual entry upon his/her premises. Because this is not a search warrant. Unreasonable refusal to grant permission may  amount to contempt of the court.

CONDITIONS FOR GRANTING ANTON PILLER ORDER.

Because its effects are far reaching (it can amount to trespass to land, infringement of right to privacy, freedom from self-incrimination, and fair hearing guaranteed under the constitution). It is granted only in the most extreme cases.

  • The plaintiff must show a strong prima facie case
  • That he has or is likely to suffer if the order is not made.
  • Clear evidence that the defendant has infringing copies in his possession and that he may destroy such materials before any application on notice can be made.
  • Mere suspicion may not suffice.

In Oluwanishola Development co V. Guinea Insurance co. the court held that there is no need for alarm. And the order is important because it facilitates an infringement action.

The claim that it infringes privacy has been dismissed in the case of Anton Piller and K.G V. Manufacturing Processes Limited and frerodo V. Unibros Limited.

In Emmanuel V. Emmanuel, subjective factors like the dishonesty and the abuse for intellectual property rights were taken into consideration.

 

Isochukwu

Quite eccentric really

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