What Are the Remedies for the Infringement of Copyright?

AuthorLesley Ellen Harris
ProfessionLawyer, author, and educator
Pages225-247
225
CHAPTER 13
What Are the Remedies
for the Infringement
of Copyright?
I didn ’t want to write for pay. I wanted to be paid for what I write.
—Leonard Cohen
Remedies in General
When the rights of a copyright holder are infringed, that copyright
holder is entitled to certain remedies for the infringement. These reme-
dies could be preventing further infringement, and/or seeking compen-
sation or redress for the infringing acts. Remedies for the infringement
of copyright can be divided into three categories: border, civil, and
criminal.
The infringement of copyright may involve additional violations
of the law other than copyright; for instance, Criminal Code o ences,
trade-mark infringement, privacy rights, and contractual violations. This
chapter sets out remedies speci cally referring to copyright, and spe-
ci cally found in the Copyright Act since these are the most promi-
nent and most obvious remedies employed in copyright infringement
cases. If you consult a lawyer, he or she will discuss whether there is an
infringement of copyright and the full range of remedies in copyright
law or other areas of the law. Your lawyer will also discuss the time and
c13.indd 225 21-09-2013 13:51:37
226 What are the Remedies for Infringement
expense involved in copyright litigation, as well as realistic expectations
with respect to your likely outcome.
The copyright owner, plainti , or defendant (both of these latter
terms are de ned below) may be a person or corporation. The excep-
tion is that the plainti in a moral rights infringement suit must be a
natural person or the estate of a natural person.
Border Remedies
Border remedies allow allegedly infringing or pirated copyright materi-
als being imported into Canada to be detained at the border. The ratio-
nale behind these remedies is that it is easier to stop infringing copies at
the border than after they are dispersed throughout the country. Since
January 1, 1994, the Canadian Copyright Act has had more comprehen-
sive provisions dealing with the importation of infringing copyright-
protected works or other subject-matter into Canada. A notable change
in 1994 is that Canadian Customs o cials could act on copyright mate-
rials in addition to books.
In order to get Canadian Customs o cers at the border to detain
suspected infringing copies of your work, you must obtain a court
order. This is done by making an application to the Federal Court of
Canada or to a superior court of law in any of the provinces. The per-
son who makes the application, the “applicant, must be the copyright
owner or exclusive licensee of the copyright (or a lawyer representing
such people). The applicant must notify the Minister of Revenue of the
court action.
The application must provide the following information:
1. That the copyright material is about to be imported into Canada
or has been imported into Canada but has not yet been released,
either:
a. In the jurisdiction where the mater ial was made and it was
made without the consent of the person who then owned
the copyright in that jurisdiction, or
c13.indd 226 21-09-2013 13:51:37

To continue reading

Request your trial