I. Available Remedies for Copyright Infringement
Barbosa, Roberto Garza, Marquette Intellectual Property Law Review
The TRIPs Agreement was the first multilateral agreement to establish a comprehensive set of remedies. With slight differences, remedies available under national copyright statutes contain all the provisions contained in the TRIPs Agreement. Consequently, the remedies ordered by a court applying its own copyright law would not be completely unfamiliar to other courts. (8)
The problem that could arise, however, is the possible clash of some of those remedies with a given country's constitutional principles, including, for example, free speech, due process of law, and takings clauses, among others. Arguably, this problem is resolved, at least partially, by considering the fact that the remedies most likely issued by the forum court are those available in the place where the remedy is enforced and are most likely to meet local constitutional tests. However, it must be remembered that local statutes are not free from constitutional flaws and are subject to constitutional checks as well.
It is evident that the negotiators of the TRIPs Agreement took into consideration the constitutional clauses of different countries, as exemplified in Article 46 of the TRIPs Agreement. (9) Article 46 empowers judicial authorities to destroy and dispose of infringing materials and the instruments utilized for their creation "unless this would be contrary to existing constitutional requirements." (10) The issue then is whether this "unless" phrasing is applicable to the entire enforcement section of the TRIPs Agreement or only to Article 46. The answer seems to be that it is not applicable to the whole enforcement section; otherwise, negotiators would have included this clause in Article 41, which contains general obligations. (11) Moreover, the phrasing of the entire enforcement section seems to be carefully crafted in order to meet constitutional requirements of most countries. (12) For instance, for provisional measures ordered inaudita altera parte, Article 50(4) establishes that the affected party shall be given notice with the opportunity of reviewing the decision to see whether it is reasonable. (13) Therefore, it may be concluded that possible constitutional issues were studied and resolved by the drafters. Obviously, the phrasing will not prevent constitutional actions against it, but at least it may help to prevail against them. In addition, when implementing treaty obligations in their internal law, local legislators have an opportunity to adapt those obligations to meet the constitutional principles of their respective countries.
This Article is not intended as an exhaustive study of local remedies, but merely seeks to examine the remedies available in several jurisdictions. It also is intended to demonstrate that remedies under national copyright statutes are, at some point, very similar due to the TRIPs Agreement. (14) Where differences do arise, they are often limited to the degree of requirements for obtaining a preliminary injunction or in the compensation of damages. This Article addresses remedies by dividing them into three categories: temporary or preliminary remedies, permanent remedies, and monetary remedies.
The copyright statutes in most countries establish preliminary measures in order to stop infringing activities. These remedies are available, for instance, in France, Germany, the United Kingdom, the United States, and Mexico without even showing if the infringer acted intentionally or negligently. In France, for example, preliminary measures include injunctions to stop infringing activities and the confiscation of infringing copies. (15) Injunctions to stop infringing activities are almost always given by the judge or administrator of the respective first instance court. (16) In Germany, an injured party may obtain a preliminary injunction even if the infringement is imminent and has not taken place yet. (17) In the United States, 17 U.S.C. [section] 502 establishes that courts may grant preliminary injunctions to prevent further harmful conduct by defendants. …