Copyright damages should not be punitive, says UK Government

The Government has proposed a change to the damages available under the Copyright, Designs and Patents Act, ruling out the possibility of the award of punitive damages in civil cases of copyright infringement.

The Ministry of Justice, which has taken over the duties of the Department for Constitutional Affairs, is operating a consultation process on the changes, which it hopes will clarify the law.

The Act permits a judge to award "additional damages" in a civil case concerning an infringement of copyright or other rights covered by the Act. The phrase is unusual in English law, with other legislation more commonly referring to exemplary, restitutionary or aggravated damages.

The Ministry of Justice believes that the Copyright Act should, like other laws, be more specific about exactly what damages can be awarded by a judge. The consultation also includes the Patents Act.

"The Government considers that the use of this anomalous term in the 1977 [Patents] and 1988 [Copyright, Designs and Patents] Acts is not helpful and believes that it may assist in clarifying the law in this area if the Acts are amended," said the Government's consultation.

Exemplary damages are those imposed for punishment; restitutionary damages are those which repay the victim of unlawful behaviour for their actual loss; and aggravated damages are compensation for harm such as mental distress.

The Ministry of Justice proposes changing the term used in the Copyright Act from "additional damages" specifically to exclude exemplary, or punitive, damages. Its recommendations referred to Justice Pumfrey's view on civil copyright infringements in a case involving Nottinghamshire Health Care.

"He came to the conclusion that there was no reason why a purely punitive or exemplary award was appropriate, given that the Act established criminal offences in the case of knowing infringement," said the proposal.

The proposed change in the Copyright Act is to replace the term "additional damages" with the term "aggravated and restitutionary damages", thereby excluding exemplary damages.

The Government has long considered punitive damages more appropriate to criminal law. "[The] aim of civil law should be to provide compensation for loss, not to punish the defendant," said the paper.

The Ministry has also said that it wants both aggravated and restitutionary damages to be available to corporations and not just individuals, in spite of a ruling to the contrary from the Court of Appeal.

"In the case of Collins Stewart Ltd and another v Financial Times Ltd the Court of Appeal decided that aggravated damages were in principle not available to a corporate claimant because a company has no feelings to injure and cannot suffer distress," said the proposal. "In view of the fact that most claims under the 1977 and 1988 Acts are likely to be brought by corporate claimants, in amending the Acts the Government would propose to clarify that aggravated and restitutionary damages under the Acts can be awarded to corporate claimants."

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