Incorporation of system of pre-established or statutory damages as part of the remedies available to right holders for infringement of IPRs. |
| Andrew Miller |
Oppose. It would remove the courts' ability to determine the most just level of damages to award taking into account the full circumstances of the case. Because questions arising from intellectual property infringement are very often complex and unclear, courts should be provided with the jurisdiction to award damages if they see fit.
Statutory damages regime could result in a situation where only large companies are prepared to do anything, because everyone else is afraid they could be sued and asked to pay an unreasonably large sum in statutory damages. |
| British American Tobacco (NZ) Ltd |
Supports the incorporation of pre-established or statutory damages as part of the remedies available for infringements of IPRs. Since counterfeiters do not keep records, it is difficult for right holders to prove damages or quantify profits made by counterfeiters.
Problems associated with assessing damage would be alleviated by the introduction of a system of additional damages (i.e. exemplary damages). The courts would not be restricted to awarding damages only with reference to the number of counterfeit products that the trade mark owner could prove were in the possession of, or had been offered for sale, or sold by, the counterfeiter. A system of additional damages has already been introduced for both copyright and patent infringement in Australia. |
| InternetNZ |
New Zealand does not have a statutory damages system and implementation of one would be a radical approach. If one was to be implemented, any formula for calculation of damages must relate to the value of the IPR infringed and be subject to the usual qualifications and counter claims. It is unlikely that any such system would be appropriate for New Zealand if a right holder can be awarded US$1.9 million for infringement with respect to 24 songs. |
| Tim McKenzie |
Overseas experience of statutory damages has demonstrated its absurdity when applied to copyright infringement – referring to Jammie Thomas-Rasset being ordered to pay USD$1,920,000 in damages for file sharing 24 songs. |
| International Trademark Association |
The government should be encouraged to develop calculation methods that lead to fines against counterfeiters and pirates commensurate to the harms caused in order to increase the deterrent impact of fines and impose sanctions, such as contempt of court, for failure to pay such fines. Calculation methods can be based on information provided by right holders. Right holders should be allowed to elect award of either actual damages suffered or pre-established damages. |
| NZFA©T |
There is a need to establish a statutory damages regime that effectively compensates copyright owners and deters piracy. Such a regime should be able to be elected by the infringed party to assist in the calculations of damages. |
| Google Australia Pty Ltd |
The courts should maintain their existing discretion, including with respect to the assessment of damages appropriate to the particular case of infringement. The underlying principals of New Zealand's legal system must be persevered such as the requirement to prove the occurrence of loss or damage before legal remedies are awarded. Copyright owners should be required to prove loss, in order to recover damages, just as any other litigant must do, or appropriately establish remedies such as an account of profits. |
| New Zealand Institute of Patent Attorneys, Inc |
A statutory damages regime is clearly punitive. This may be a constitutional issue in New Zealand. Need to be mindful that in the adding up of minor penalties, an excessively large total penalty may result (proportionality of the final penalty to the infringement could be an issue). |
Incorporation of a statutory formula or presumptions for use by the courts in calculating of damages arising from infringement of IPRs. |
| Tim McKenzie |
While it might be presumed that trade mark infringement always has a commercial motive or that every sale of a falsely marked product represents a lost sale for the trade mark owner, these presumptions are absurd in the context of copyright infringement. |
| International Trademark Association |
The government should be encouraged to develop calculation methods that lead to fines against counterfeiters and pirates commensurate to the harms caused, in order to increase the deterrent impact of fines and impose sanctions, such as contempt of court, for failure to pay such fines. Calculation methods can be based on information provided by right holders. Right holders should be allowed to elect award of either actual damages suffered or pre-established damages. |
| RIANZ |
Rules should be established giving the courts rules on the calculation of damages and the power to order monetary relief that results in the indemnification of the right holder, would allow the right holder to recover all profits gained from the infringement and provide an effective deterrent. |
| New Zealand Institute of Patent Attorneys, Inc |
There is no local problem with how the courts determine damages that this measure would address. This could be an issue for non-commercial infringement. Statutory formulae or presumptions could lead to the infringer making judgements about the level of infringing activity they could undertake before being faced with legal action. |
Incorporation of a statutory formula for use by the courts in taking account of profits arising from infringement of IPRs. |
| International Trademark Association |
Supports the inclusion of provisions that will establish a formula for courts to use in taking account of profits arising from counterfeiting and piracy activities. |
| RIANZ |
Rules should be established giving the courts rules on the calculation of damages and the power to order monetary relief that results in the indemnification of the right holder, this would allow the right holder to recover all profits gained from the infringement and provide an effective deterrent. |
| New Zealand Institute of Patent Attorneys, Inc |
There is no local problem about how the courts determine damages that this measure would address. This could be an issue for non-commercial infringement. Statutory formulae or presumptions could lead to the infringer making judgements about the level of infringing activity they could undertake before being faced with legal action. |
The courts being given the authority to order the delivery up and disposal of those material and implements used in creation or manufacture of infringing goods. |
| Tim McKenzie |
While it might be considered appropriate for trade mark infringement, it is inappropriate to apply to copyright infringement because a general-purpose computer is the only implement necessary to infringe copyright. General-purpose computers are used to store data, most of which is irrelevant to any copyright infringement the owner might commit. The disposal of a general-purpose computer represents an irrelevant and disproportionate punishment for copyright infringement. Disposal of a general-purpose computer will fail to prevent further copyright infringement. |
| International Trademark Association |
Counterfeit goods and pirated works should be destroyed and definitively removed from channels of commerce, or disposed of with the right holder's consent where there is no health or safety risk. Destruction (sic) of materials and implements used to manufacture them should be conducted in a manner that minimizes risks of further infringements. |
| RIANZ |
Courts should have the authority to order destruction of infringing copies and equipment used for infringing production. |
| New Zealand Institute of Patent Attorneys, Inc |
Inappropriate to apply to plain goods because such goods have non-infringing uses. Implements should only be seized where there has been predominate use of them to manufacture infringing goods. |
The courts being given the authority to order an infringer to provide to the right holder, for the purpose of collecting evidence, any information that the infringer possesses or controls, such as information on the origin and distribution networks of the infringing goods. |
| Andrew Miller |
This would be a violation of the human right that no one should be forced to self-incriminate. |
| International Trademark Association |
Supports this element being included in ACTA. |
| RIANZ |
Courts should have the authority to order the defendant and third parties, including intermediaries that hold information, to disclose information relating to the infringement or other persons involved in the infringement. |