Section 27 of the Copyright and Neighbouring Rights Act 2000 sets out what a right holder recovers.
Sections 27(1) and (2) — damages
The owner of any right protected under this Act whose right has been infringed is entitled to payment of damages by the infringer for the prejudice suffered as a consequence of the act of infringement, including such expenses directly caused by the infringement.
The amount shall be fixed taking into account —
the importance of the material;
the moral prejudice suffered by the owner of the right; and
the importance of the infringer’s profits attributable to the infringement.
“The owner of any right protected under this Act” — not only the copyright owner. A performer, a producer, a broadcasting organisation, and an author whose moral rights have been infringed all come within it.
“Moral prejudice” is a separate head. Section 27(2) directs the Court to take it into account in every case — not only where a moral right was infringed. Damage to the author’s standing, and the injury of having a work misused, are compensable even where economic loss is small.
The infringer’s profits are relevant. The claim is not confined to what the owner lost. A defendant who profited from infringement is exposed to an award reflecting those profits.
And “expenses directly caused by the infringement” are recoverable as part of the damages — investigation costs, forensic examination, the cost of tracing copies.
Section 27(3) — the innocent infringer
Where the infringer did not, or had no justifiable reason to, know that he was engaged in an infringing activity, the Court may limit damages to the profits of the infringer attributable to the infringement.
Innocence does not defeat the claim. It allows the Court to cap the award at the infringer’s profits attributable to the infringement — a restitutionary measure rather than a compensatory one. An innocent infringer who made no profit may pay little; an innocent infringer who profited substantially still accounts for it.
Note the two limbs: the infringer must not have known and must have had no justifiable reason to know. A business that took no steps to check the provenance of material it used will struggle with the second limb.
Note also that the relief is discretionary — the Court may limit damages.
This is also where section 29(1)(c) and (d) bear on liability: distributing or communicating material knowing, or having reason to know, that electronic rights management information has been removed or altered is itself unlawful — and a defendant who ignored missing rights management information will find it hard to claim it had no justifiable reason to know.
Sections 27(4) to (6) — destruction and disposal
(4) Subject to subsection (5), where infringing copies exist, the Court shall order the destruction or other reasonable disposition of those copies and their packaging, in such a manner as to avoid harm to the right holder — unless the owner of the right requests otherwise.
(5) Subsection (4) shall not apply to copies and their packaging which were acquired by a third party in good faith.
Where there is a danger that implements may be used to commit or continue to commit acts of infringement, the Court may, whenever and to the extent it is reasonable, order their destruction or other reasonable disposition in such a manner as to minimize the risks of further infringements — including the surrender of the implements to the owner of the right.
For copies, destruction is mandatory — the Court shall order it, subject to two qualifications: the owner may request otherwise, and copies acquired by a third party in good faith are exempt.
For implements, it is discretionary — the Court may order it where there is a danger of continued infringement, and only to the extent reasonable. Equipment usually has legitimate uses, so a proportionate order may be surrender to the right holder rather than destruction.
Section 27(5) is an important protection for consumers and retailers. A person who bought infringing copies in good faith does not have them destroyed — though a person who continues to deal in them once on notice is no longer acting in good faith.
Sections 27(7) and (8) — orders to cease, and the K100,000 fine
(7) Where it appears to the Court that there is a likelihood of an act of infringement continuing, the Court may order that such act of infringement shall cease to be continued.
(8) A person who carries on an act of infringement in contravention of an order under subsection (7) is liable, on conviction, to a fine not exceeding K100,000.00, in addition to any other penalty the Court is empowered to impose.
Subsection (8) turns breach of a cease order into a matter carrying a fine of up to K100,000 on conviction, on top of anything else — including the section 28 offence, which carries up to ten years’ imprisonment or K100,000, or both.
The cease order under subsection (7) is separate from, and additional to, the injunction power in section 26(1)(a). Section 26 is available as a conservatory measure before trial; section 27(7) is a final order where continuation is likely.
Building the claim
| Step | Provision |
|---|---|
| Prove ownership or entitlement — the name on the work, or a written assignment or licence | s 19, s 20 |
| Identify the right infringed and rule out the free uses | s 6, ss 8–16, s 25 |
| Secure injunctions and impounding — including documents, accounts and business papers | s 26(1) |
| Quantify prejudice, moral prejudice and the infringer’s profits, and the expenses directly caused | s 27(1), (2) |
| Seek destruction of copies — or ask the Court to order otherwise if you want them | s 27(4) |
| Seek destruction or surrender of implements where repetition is a danger | s 27(6) |
| Seek a cease order where continuation is likely | s 27(7) |
| Consider referring the matter for prosecution | s 28 |
One drafting point on section 27(4): the mandatory destruction order applies unless the owner of the right requests otherwise. Where infringing stock has value — genuine goods bearing an unauthorised reproduction, for example — a right holder may prefer delivery up to destruction, and should say so in the pleading.
Sources
- Copyright and Neighbouring Rights Act 2000 — ss 2, 6–16, 19–29
Before relying on anything here, read the current text of the Copyright and Neighbouring Rights Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.