Wednesday, September 27, 2017

Some New Articles, Posts on Exemplary Damages

1.  Joshua Marshall has published a paper titled Aggravated or Exemplary Damages for Copyright Infringement?, 39 EIPR 565 (2017).  Here is the abstract:
This article will critically evaluate the damages provisions relating to copyright infringement, specifically the award of additional damages under s.97(2) of the Copyright, Designs and Patents Act 1988. The UK courts have held that such awards are a measure of aggravated damages. This article will examine to what extent these additional awards are aggravated damages and, therefore, compensatory. It will be argued that such awards have a closer affinity to orthodox exemplary damages. The practical application by the UK courts reinforces this view.
Mr. Marshall argues that "aggravated damages" are intended to compensate for, e.g., harm to pride and dignity, but that awards under the above-cited provision of the copyright statute are more in the nature of exemplary damages intended to punish. For previous discussion on this blog of the availability of punitive damages for patent infringement in the U.K., see here.  For previous discussion of damages for what is often referred to in Europe as "moral prejudice," see, e.g., here.

2.   In August, Luca Giove and Andrea Comelli published a post on the EPLaw Blog titled Italy:  Supreme Court Ruling on Punitive Damages.  The post discusses a decision of the Grand Chamber of the Italian Court of Cassation (Cass. Civ. SS. UU. 05.07.2017, no. 16601) in which, according to the authors, the court "ruled that it could be possible to obtain recognition--where necessary--and enforce in Italy foreign judgements which may have awarded to the winning party a restoration in the form of punitive damages."  Although the case did not involve IP rights (it appears that the underlying action was a personal injury case litigated in the U.S.), the authors argue that "the ruling has many implications also for patent and more in general IP disputes, as it can be easily guessed: openings to 'punitive damages' emerged already in this year’s CJEU decision OTK v SFP (C-367/15), and are extensively detailed by the reasoning of the decision of the Court of Cassation, where specific references are made to Italian statutory provisions on the infringement of patent and other IP rights."  They also note that awards in excess of purely compensatory awards--such as royalties that exceed those that a willing licensee would have paid, or awards of the infringer's profits--aren't necessarily foreign to Italian IP law.  An interesting read.

For previous discussion on this blog of the CJEU decision referenced above, see, e.g., here.

3.  Also in August, Prashant Reddy published a post on the Spicy IP Blog titled Delhi High Court Has Liberally Applied Time Incorporated to Award Punitive Damages Even After Justice Bhat Over-ruled ItHere is a link.  To my knowledge, Indian courts have yet to award punitive damages in a patent case, but they have done so in some trademark and copyright matters.  For previous discussion on this blog, see, e.g., here.

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