Interpretation of this Division
s 304
304. In this Division —“delivery up order” means an order under section 309(2); “disposal order” means an order under section 310(1); “infringement action” means an action for a rights infringement.
Copyright Act 2021 Division 1 — Remedies for rights infringements
Compiled from an official source version. Later amendments or repeals may not be reflected; the official text prevails. · Read the official text ↗
Remedies
s 305
305.—(1) Subject to the provisions of this Act, the remedies that the Court may grant for a rights infringement include —(a) an injunction (which may be subject to terms); (b) damages, including additional damages under section 307; (c) an account of profits; (d) if the claimant so elects, statutory damages in accordance with section 308; (e) a delivery up order; and (f) a disposal order. (2) Subject to subsection (3), the remedies in subsection (1)(b), (c) and (d) are mutually exclusive. (3) Where the Court orders damages (with or without additional damages) under subsection (1)(b) in respect of a rights infringement, the Court may also order an account of profits attributable to the infringement, but only insofar as the profits have not been taken into account in computing those damages.
No damages for innocent rights infringement
s 306
306.—(1) Where a person does an act that constitutes a rights infringement, damages may not be ordered for the infringement if, when doing that act, the person does not know and could not reasonably have known that the act is a rights infringement. (2) To avoid doubt, subsection (1) does not prevent the Court from ordering any other remedy (including an account of profits) for the infringement.
Measure of damages
s 307
307. The Court may order additional damages for a rights infringement if it is appropriate in the circumstances, having regard to all relevant matters, including —(a) the flagrancy of the infringement; and (b) any benefit gained by the defendant because of the infringement.
Measure of statutory damages
s 308
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.
Order to deliver up infringing copies, etc.
s 309
309.—(1) This section and sections 310 and 311 apply where —(a) an infringement action is brought; and (b) any of the following items (called in this section and sections 310 and 311 offending items) is before the Court or in the defendant’s possession:(i) any infringing copy; (ii) any article that has been used to make infringing copies. (2) The Court may order the offending items to be delivered up to the claimant, but only if —(a) the Court also makes a disposal order; or (b) it appears to the Court that there are grounds for making a disposal order. (3) If the Court orders any offending items to be delivered up to a person under subsection (2), the person must retain the items until the Court decides whether or not to make a disposal order.
Order to dispose of infringing copies, etc.
s 310
310.—(1) The Court may order the offending items to be —(a) forfeited to the claimant; (b) destroyed; or (c) otherwise dealt with. (2) Without limiting subsection (1)(c), a disposal order may require offending items to be sold and the proceeds to be divided between interested persons. (3) In deciding whether to make a disposal order, and the terms of the order, the Court must consider —(a) whether other remedies would be adequate to compensate the claimant and to protect the claimant’s interests; and (b) the need to ensure that no item is disposed of in a manner that would adversely affect the claimant. (4) If the Court decides not to make a disposal order after making a delivery up order, the Court —(a) must order that the offending items be returned to the person who was last in possession of the offending items before they were delivered up; and (b) may order the defendant in the infringement action to pay just and equitable damages to the claimant.
Procedure for disposal order
s 311
311.—(1) This section applies to proceedings for a disposal order to be made against offending items. (2) The Court must give directions to serve notice on any person having an interest in any of the offending items. (3) A person who claims an interest in any of the offending items may appear in the proceedings, even if notice is not served on the person. (4) If the Court makes a disposal order, any person interested in any of the offending items may appeal against the order, even if the person did not appear in the proceedings for the order. (5) A disposal order does not take effect until —(a) the period for giving notice of an appeal against the order expires and no notice of appeal has been given; or (b) if a notice of appeal is given within the period for giving notice of an appeal — the appeal is finally determined or abandoned.
Remedy for infringement of copyright under section 151
s 312
312. Despite any provision to the contrary in this Act, the only remedy for an infringement of copyright under section 151 is an order for the payment of equitable remuneration as determined by a Copyright Tribunal.
Back to Copyright Act 2021 — full text
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