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28 2000


Chapter 14

Remedies: Owner of Performers' Property Rights

Infringement actionable by rightsowner.

303. —(1) An infringement of a performer's property rights is actionable by the rightsowner.

(2) In an action for infringement of a performer's property rights under this section all relief by way of damages, injunctions, account of profits or otherwise is available to the plaintiff as it is available in respect of the infringement of any other property right.

(3) Where, in an action for infringement of a performer's property rights, the defendant does not admit that the plaintiff is owner of the performer's property rights, the court may direct that evidence in relation to ownership of the performer's property rights be given on affidavit and the court may decide the issue on consideration of any affidavit presented to it unless it is satisfied that any conflict of evidence between the affidavits may not be resolved other than by hearing oral testimony in which case the court may order that oral evidence may be adduced.

(4) Hearsay evidence may be accepted for the purposes of any hearing under subsection (3).

Award of damages in infringement action.

304. —(1) The court may, in an action for infringement of a performer's property right award such damages as, having regard to all the circumstances of the case, it considers just.

(2) Without prejudice to any other remedy, where, in an action for infringement of a performer's property rights, it is shown that at the time of the infringement the defendant did not know and had no reason to believe that the rights subsisted in the recordings to which the action relates, the plaintiff is not entitled to damages against the defendant.

(3) In exercising its powers under subsection (1) in addition to or as an alternative to compensating the plaintiff for financial loss, the court may award aggravated or exemplary damages or both aggravated and exemplary damages.

Undertakings concerning licences of right.

305. —(1) Where, in proceedings for infringement of a performer's property rights in respect of which a licence is available as of right, the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the Controller—

(a) no injunction shall be granted against the defendant,

(b) no order for delivery up shall be made under section 255 , and

(c) the amount recoverable against the defendant by way of damages or on an account of profits shall not exceed three times the amount which would have been payable by the defendant as licensee where a licence on those terms had been granted before the earliest infringement.

(2) An undertaking under subsection (1) may be given at any time before the final order in the proceedings without any admission of liability.

(3) Nothing in this section shall affect the remedies available in respect of an infringement committed before a licence was available as of right.