Copyright Act

Marginal note:Statutory damages

• 38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for all infringements involved in the proceedings, with respect to any one work or other subject-matter, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just.

• Marginal note:Where defendant unaware of infringement

  (2) Where a copyright owner has made an election under subsection (1) and the defendant satisfies the court that the defendant was not aware and had no reasonable grounds to believe that the defendant had infringed copyright, the court may reduce the amount of the award to less than $500, but not less than $200.

• Marginal note:Special case

  (3) Where

  • (a) there is more than one work or other subject-matter in a single medium, and

  • (b) the awarding of even the minimum amount referred to in subsection (1) or (2) would result in a total award that, in the court’s opinion, is grossly out of proportion to the infringement,

  the court may award, with respect to each work or other subject-matter, such lower amount than $500 or $200, as the case may be, as the court considers just.

• Marginal note:Collective societies

  (4) Where the defendant has not paid applicable royalties, a collective society referred to in section 67 may only make an election under this section to recover, in lieu of any other remedy of a monetary nature provided by this Act, an award of statutory damages in a sum of not less than three and not more than ten times the amount of the applicable royalties, as the court considers just.

• Marginal note:Factors to consider

  (5) In exercising its discretion under subsections (1) to (4), the court shall consider all relevant factors, including

  • (a) the good faith or bad faith of the defendant;

  • (b) the conduct of the parties before and during the proceedings; and

  • (c) the need to deter other infringements of the copyright in question.

• Marginal note:No award

  (6) No statutory damages may be awarded against

  • (a) an educational institution or a person acting under its authority that has committed an act referred to in section 29.6 or 29.7 and has not paid any royalties or complied with any terms and conditions fixed under this Act in relation to the commission of the act;

  • (b) an educational institution, library, archive or museum that is sued in the circumstances referred to in section 38.2; or

  • (c) a person who infringes copyright under paragraph 27(2)(e) or section 27.1, where the copy in question was made with the consent of the copyright owner in the country where the copy was made.

• Marginal note:Exemplary or punitive damages not affected

  (7) An election under subsection (1) does not affect any right that the copyright owner may have to exemplary or punitive damages.