A recent decision in the UK Intellectual Property and Enterprise Court (IPEC) provides some helpful guidance on the application of the ‘user principle’ and, more importantly, on the interplay between damages for flagrant infringement under s.97(2) of the Copyright Designs and Patents Act 1988 (CDPA) and damages under Article 13 of the IP Enforcement Directive (Directive 2004/48). The case is Absolute Lofts South West London v Artisan Home Improvements (read the judgment in full.)
Both parties were engaged in roof loft conversions, although geographically they were not competitors. Artisan had admitted to using 21 photographs of loft conversio [...]
In determining the amount of remuneration that an author might obtain for the copyright in his photographs, it was necessary to determine the remuneration that he would have received if the person who violated his rights had entered into an agreement with the author concerning the use of the work. Such a determination should be based on the remuneration rates in the photography market, taking into account the quality and the possible usage of these photos.
This case in the Court of Appeal of ‘s-Hertogenbosch concerned the use of a photograph of a photo model by two rappers in one of their music videos. The video was uploaded to YouTube after which it was disseminated via their own website’s homepage and their YouTube Channel. Although the rappers were authorised to do so by the photo model in question, they did not have the consent of the photographer, i.e. the rightholder. Consequently, the photographer brought suit against the two rappers on the basis of copyright infringement.
In order to estimate her damages, the photographer provided the Court with an indicative rates list for photography assignments. Although the Court found t [...]
In this case, the Court of Appeal was required to determine the amount of damages payable when the fact of infringement was ascertained but there was insufficient evidence on the total amount of damages incurred. The court held that the circumstances related to the type, nature and gravity of the infringement, the lost profit, any moral damages incurred and the revenue gained as a result of the infringement should all be taken into account, in accordance with the equity principle.
In this case, which concerned copyright infringement through the publication of two photographs in two issues of a daily newspaper, the court took into account the following: the significant circulation of t [...]
In its recent judgment in EAÜ v MTÜ Safari Seiklused (the “Safari” case), the Estonian court held that where a person has signed a licence agreement with an authors’ collecting society, with the intention of using the rights of authors commercially for a public performance, they must unquestioningly fulfil all of the terms of that agreement. According to the licence agreement signed between an Estonian concert organiser, MTÜ Safari Seisklused, and the Estonian Authors’ Society (EAÜ) the amount of the licence fee did not depend on how many authors EAÜ in fact represents. Therefore, although in this case EAÜ represented only one author from three whose works were being played publicl [...]
Two Acts of 2007 and 2014 to fight against counterfeiting have modified the French Intellectual Property Code, in order to enable improved compensation for the rightholders as well as better protection of intellectual property rights.
In French intellectual property infringement cases, damages were traditionally supposed to cover the prejudice suffered, no more, no less. Punitive damages were not theoretically possible. However, Acts No. 2007-1544 of 29 October 2007 and No. 2014-315 of 11 March 2014 to strengthen the fight against counterfeiting have modified many aspects of the French Intellectual Property (‘IPC’) with regard to damages and remedies.
Calculation of the damages
The French Supreme Court (“Cour de Cassation”) has upheld, in a ruling of 25 September 2012, a judgment of the Court of Appeal of Paris condemning Radioblog and its managing directors to the payment of damages amounting to over €1 million, in addition to a suspended prison sentence of nine months and a €10,000 fine.
The case is interesting for two reasons: the gigantic amount of damages and the application, for the first time, of new provisions of the French Intellectual Property Code condemning the provision of software applications intended to be used for infringing copyright.
The facts are the following: the website Radioblog provided a software called ‘RadioBlogClub’ to Internet user [...]