Page 97 - Law and the Media

Law and the Media
Flagrant damages
Flagrant damages can be awarded in addition to infringement damages. Under the Copyright
Act 1956, if the court was satisfied when looking at the flagrancy of the infringement and any
benefit the defendant obtained from it that ‘effective relief’ was not otherwise available to
the claimant, it could award additional damages as it thought appropriate. The CDPA
changed the test slightly. Now, the court can award such damages as the justice of the case
may require. The court need not consider whether the claimant can obtain effective relief.

Flagrant damages are aimed at deterring the defendant. For example, if the claimant refused
the defendant permission to publish something but the defendant did so regardless in order
to benefit himself financially, the court might award additional damages to the claimant. If
the owner would not have given permission at any price, for example for the publication of
private papers, the damages would be higher. A similar situation will arise if publication
causes distress to the claimant. In Williams v Settle (1960), a photographer supplied wedding
photographs to the press. Because the bride had commissioned the photographs, she owned
the copyright under the law prior to the CDPA. The photographer sold them to the press for
financial gain after the bride’s father-in-law was murdered. The court awarded flagrant
damages of £1000.

Account of profits
The claimant may choose to recover an account of profits instead of damages. The amount
is calculated by reference to the profit made by the defendant, not the loss suffered by the
claimant. Only profit is recoverable. The defendant may set off any expenses incurred in
connection with producing the infringing articles against the amount he owes the claimant on
account of profits. The calculation of profits can be a long and very expensive task.

3.8.3 Delivery up
Infringing copies of copyright works belong to the copyright owner. Under the CDPA, the
owner of copyright can recover infringing copies from anyone who is in possession of them
in the course of a business. This enables a copyright owner to demand delivery up, in other
words the handing over, of copies of leaked documents. In Secretary of State for Defence v
Guardian Newspapers Ltd (1985) the Government was granted an order for delivery up of
copies of internal documents leaked to the Guardian by a government employee, Sarah
Tisdall, because the infringing copies belonged to the Government Minister. The privilege
against the disclosure of sources of information provided by Section 10 of the Contempt of
Court Act 1981 did not protect the Guardian from handing over the documents, which
identified their source (see also Chapter 11).

3.9 Criminal offences

Certain types of copyright infringement give rise to criminal penalties in addition to a civil
claim in damages. The offences are directed at commercial exploitation of copyright.
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