§ 308 — Measure of statutory damages

308.—(1) This section applies where a claimant in an infringement action elects for statutory damages.(2) The amount of statutory damages must not exceed —(a)

$10,000 for each work or performance that is the subject of the action;

(b)

$200,000 for all the works that are the subject of the action; and

(c)

$200,000 for all the performances that are the subject of the action.

(3) However, subsection (2)(b) and (c) does not apply if the claimant proves that the claimant’s actual loss for all the works or performances that are the subject of the action exceeds $200,000.

(4) If separate and independent works, or recordings of protected performances, are assembled into one whole, they are taken to be one work for the purposes of subsection (2).

(5) In deciding the amount of statutory damages to award, the Court must consider all relevant matters, including —(a)

the nature and purpose of the act constituting the rights infringement, including whether the act is of a commercial nature or otherwise;

(b)

the flagrancy of the rights infringement;

(c)

whether the defendant acted in bad faith;

(d)

any loss that the claimant has suffered or is likely to suffer because of the infringement;

(e)

any benefit gained by the defendant because of the infringement;

(f)

the conduct of the parties before and during the proceedings; and

(g)

the need to deter similar infringements.

—(1) This section applies where a claimant in an infringement action elects for statutory damages.

(2) The amount of statutory damages must not exceed —(a)

$10,000 for each work or performance that is the subject of the action;

(b)

$200,000 for all the works that are the subject of the action; and

(c)

$200,000 for all the performances that are the subject of the action.

(3) However, subsection (2)(b) and (c) does not apply if the claimant proves that the claimant’s actual loss for all the works or performances that are the subject of the action exceeds $200,000.

(4) If separate and independent works, or recordings of protected performances, are assembled into one whole, they are taken to be one work for the purposes of subsection (2).

(5) In deciding the amount of statutory damages to award, the Court must consider all relevant matters, including —(a)

the nature and purpose of the act constituting the rights infringement, including whether the act is of a commercial nature or otherwise;

(b)

the flagrancy of the rights infringement;

(c)

whether the defendant acted in bad faith;

(d)

any loss that the claimant has suffered or is likely to suffer because of the infringement;

(e)

any benefit gained by the defendant because of the infringement;

(f)

the conduct of the parties before and during the proceedings; and

(g)

the need to deter similar infringements.