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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