Section 38.1 — Copyright Act: Statutory damages

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 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 and not more than $20,000 that the court considers just, with respect to all infringements involved in the proceedings for each work or other subject-matter, if the infringements are for commercial purposes;

and in a sum of not less than $100 and not more than $5,000 that the court considers just, with respect to all infringements involved in the proceedings for all works or other subject-matter, if the infringements are for non-commercial purposes. An infringement under subsection 27(2.3) may give rise to an award of statutory damages with respect to a work or other subject-matter only if the copyright in that work or other subject-matter was actually infringed as a result of the use of a service referred to in that subsection. For the purpose of subsection (1), an infringement under subsection 27(2.3) is deemed to be for a commercial purpose. If the copyright owner has made an election under subsection (1) with respect to a defendant’s infringements that are for non-commercial purposes, they are barred from recovering statutory damages under this section from that defendant with respect to any other of the defendant’s infringements that were done for non-commercial purposes before the institution of the proceedings in which the election was made. If a copyright owner has made an election under subsection (1) with respect to a defendant’s infringements that are for non-commercial purposes, every other copyright owner is barred from electing to recover statutory damages under this section in respect of that defendant for any of the defendant’s infringements that were done for non-commercial purposes before the institution of the proceedings in which the election was made. If 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 under paragraph (1)(a) to less than $500, but not less than $200. In awarding statutory damages under paragraph (1)(a) or subsection (2), the court may award, with respect to each work or other subject-matter, a lower amount than $500 or $200, as the case may be, that the court considers just, if either there is more than one work or other subject-matter in a single medium, or the award relates only to one or more infringements under subsection 27(2.3); and the awarding of even the minimum amount referred to in that paragraph or that subsection would result in a total award that, in the court’s opinion, is grossly out of proportion to the infringement. A collective society or copyright owner who has authorized a collective society to act on their behalf may make an election under this section with respect to an act set out in subsection (4.1) only if applicable royalties are set out in an approved tariff or fixed under subsection 71(2) and the defendant has not paid them. If they make the election, the collective society or copyright owner may only recover, in lieu of any other remedy of a monetary nature provided by this Act, an award of statutory damages in respect of such acts 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. Subsection (4) applies with respect to the following acts: the performance in public of musical works or dramatico-musical works, of performer’s performances of such works, or of sound recordings embodying such works or performances; and the communication to the public by telecommunication of musical works or dramatico-musical works, other than as described in subsection 31(2), of performer’s performances of such works, or of sound recordings embodying such works or performances. In exercising its discretion under subsections (1) to (4), the court shall consider all relevant factors, including the good faith or bad faith of the defendant; the conduct of the parties before and during the proceedings; the need to deter other infringements of the copyright in question;

and in the case of infringements for non-commercial purposes, the need for an award to be proportionate to the infringements, in consideration of the hardship the award may cause to the defendant, whether the infringement was for private purposes or not, and the impact of the infringements on the plaintiff. No statutory damages may be awarded against 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; an educational institution, library, archive or museum that is sued in the circumstances referred to in section 38.2; 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; or an educational institution that is sued in the circumstances referred to in subsection 30.02(7) or a person acting under its authority who is sued in the circumstances referred to in subsection 30.02(8). An election under subsection (1) does not affect any right that the copyright owner may have to exemplary or punitive damages.