What Are the Remedies for the Infringement of Copyright?

• Author: Lesley Ellen Harris
• Profession: Lawyer, author, and educator
• Pages: 225-247

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

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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

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