Playing Russian Roulette (otherwise known as quantifying a claim for additional damages)

Additional Damages awarded under section 115 of the Copyright Act 1968 (Cth) are akin to a game of Russian Roulette, you never quite know what you’ll walk away with! A survey of recent cases indicated that an applicant can get anywhere from 6.8% to 174% of the damages awarded at trial.

Whilst it seems that the reasons for granting additional damages are few and consistent across the cases, namely, deterrence, flagrancy and the respondent’s conduct (knowledge and continued infringement), the amount of additional damages granted in each case varies enormously.

A survey of 14 cases decided within the past 16 years revealed that in two of the cases additional damages of less than 10% of the trial damages were awarded, in six of the cases additional damages of between 25% and 65% of the trial damages were awarded, and in three cases additional damages of between 100% and 174% of the compensatory damages were awarded.

In another two cases a staggering 13 times and 54 times the compensatory damages awarded at trial were awarded as additional damages!  In the latter of these cases, a case which concerned the importation and sale of unauthorised sound recordings, the Full Federal Court stated that the large amount of additional damages ($15,000) in comparison to the small award of compensatory damages ($275)  was not disproportionate!? In both of these cases the court stated that such significant  additional damages were awarded as the infringing conduct was designed and calculated to obtain financial benefit.

Whatever the case may be, it seems that for applicants and respondents alike, additional damages can certainly prove to be a significant and unpredictable issue in any copyright case!


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