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Additional costs and damages that may be claimed for online copyright infringement

This advice applies to Scotland

The copyright owner can ask for compensation for the profit they have lost by your actions. We refer to copyright owner but claims for compensation may also come from an exclusive licensee or solicitor working on behalf of a copyright owner or exclusive licensee.

This page tells you what other costs and damages which the copyright owner can claim or which the court can award, depending on the circumstances of the case.

If a case comes to court it has the discretion to award additional damages after taking into account all the circumstances. For example, damages can be awarded because of the behaviour of the parties before the case went to court and whether or not you both acted reasonably. Additional damages may also be awarded if you have flagrantly infringed or have benefited from the infringement.

If you are asked to pay additional damages you should ask the copyright owner on what basis they claim additional damages and how they have been calculated.

If you only downloaded or uploaded a copyrighted work and no money changed hands, courts are unlikely to consider that you have benefited financially from the infringement. You should therefore reject demands for additional damages on that basis.

Damages for flagrant infringements

A flagrant infringement is where you have intentionally infringed copyright. If you used a peer-to-peer filesharing network which is notorious for copyright infringement, such as The Pirate Bay, a court may consider that you knew what you were doing and consider this to be a flagrant infringement.

However, you may have believed at the time that what you were doing was not copyright infringement. Or perhaps you didn't know that you were making copyrighted works available to others to download. For example, if you were using peer-to-peer software you might not have realised it was exposing copyrighted material for download by other people.

If you were unaware of the fact you were committing a copyright infringement, you should explain this to the copyright owner and reject their demands for additional damages for flagrancy. This is because a lack of knowledge about what you were doing can shield you from flagrancy claims.

Claims for costs as part of the settlement

The types of costs a copyright owner can claim, and the amount they can claim, are fixed by the relevant courts to a maximum limit. What costs can be claimed will depend on the type of court action being taken against you.

If you are being taken to court in Scotland for a claim under the simple procedure there are special rules about limits on costs for cases up to £3,000. However even under the procedure used exceptions about the rules on costs can be made.

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