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This paper examines damages in copyright infringement, in particular the expansion in the scope of damages, in particular additional damages, to include dissuading the public and considers whether this may be contrary to the rule of law.
For the purpose of this paper the rule of law is used as a measure, a way to analyse if the regulation for awarding damages in copyright infringement cases is appropriate. In order to do this, Dicey’s definition of the rule of law is used; the absence of arbitrary powers, equality before the law, and the constitution being the ordinary law of the land (to summarise). These are the standards against which the regulation for damages is measured.
Under the provisions of the Information Society Directive 2001/29/EC, the Enforcement Directive 2004/48/EC and the UK IP Enforcement Regulations 2006, the UK Courts have developed principles on quantifying damages in copyright infringement cases. Previously, there were two rudimentary models based on the principle of compensation; (1) damages in order to restore the claimant to the position they would have been in if the infringement had not occurred, and (2) an account of profits from the defendant’s illegal gains. Subsequently, ‘additional damages’ could be awarded at the discretion of the court. One of the factors that can be taken into consideration is to dissuade the defendant and any, actual or potential, other infringers.
This paper looks at cases such as Absolute Lofts  EWHC 2608 (IPEC) and PPL v Hagan EWHC 3076 (IPEC) to consider the scope of awarding damages from compensatory, to punishment and deterrence. As such, this paper questions whether the expansion of the scope of damages for copyright infringement to include being ‘dissuasive’ to the public, is contrary to the rule of law.
Dr Bosher is a Lecturer in Intellectual Property Law at Brunel University London