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7 February 2016Copyright

WIPR survey: Readers say US copyright damages can stretch too far

Readers have agreed with a US government department which said that the Copyright Act should be amended to change the way that damages are awarded in cases.

In a white paper released last week, the US Department of Commerce’s Internet Policy Task Force (IPTF) said it was too easy to claim large damages and that the act should include provisions that are more favourable towards fair use.

The white paper, called “White Paper on Remixes, First Sale, and Statutory Damages”, also outlined ways that judges and juries could be given more guidance when assessing damages.

Responding to WIPR’s most recent survey, 63% of readers said they thought it was too easy to claim substantial damages in copyright cases.

One respondent described the amount of damages available following the illegal downloading of films as “ridiculous”.

“The damages for illegally downloading a film can be a few thousand dollars,” the reader said.

“Most people who illegally download a film only do so because it is free. They probably wouldn’t even buy the film if they had to pay for it. Thus the copyright owner has, in effect, suffered no damage at all.

“Damages should be replaced by a reasonable royalty. If a copyright owner makes $1 from each sale of a film then they should get $1 for each illegal download.”

On assessing damages, the paper recommended that judges or juries should take several factors into account including the defendant’s financial situation and the value or nature of the work infringed, as well as the scope of infringement.

It added that large damages in some cases could be alleviated by establishing a small claims tribunal with caps on awards.

Under current copyright law, if a defendant says it did not know the work was copyrighted despite a copyright notice appearing on the work, the innocent infringer defence is rejected.

But the IPTF said courts should still consider it a valid defence even if a copyright symbol was present.

For  this week’s survey we ask: “Last week we reported that the Court of Justice of the European Union said that a licensee can enforce a valid Community trademark despite the licensing agreement not being registered at OHIM. Do you agree with that position?”

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