SPECYFIKA ROSZCZENIA ODSZKODOWAWCZEGO Z ART. 79 USTAWY O PRAWIE AUTORSKIM I PRAWACH POKREWNYCH
PARTICULAR CHARACTER OF CLAIM FOR DAMAGES ACCORDING TO ARTICLE 79 OF POLISH COPYRIGHT AND NEIGHBOURING RIGHTS ACT

Summary/Abstract: This article focuses on one of remedies for infringement of copyright: claim for damages. To date, the remedy in question has not gathered much jurisprudence’s attention, and it has not been popular among practitioners. The reason seems to be that the above remedy was rather difficult to seek, as it required to prove the amount of actual damage, and copyright owner whose rights had been infringed had more effective remedies at his disposal, e.g. accounts of profits or claim for double or even triple compensation). Recently, the importance of claim for damages has significantly increased by virtue of the latest amendment to Copyright Act. According to the above amendment to Copyright Act, claim for damages has become one of principal remedies for copyright infringement, and now it has absorbed the claim for double/triple compensation (which used to be a separate remedy before the amendment). The author discusses the character of claim for damages for copyright infringement. He argues that – contrary to a common opinion – it is not a type tortious liability and rules of Civil Code on torts should not be applied thereto. It is because the claims in tort generally arise when damage is done faulty, while the claim for damages in copyright infringement arises any time copyright is infringed (i.e. a copyright owner may claim the repairment of damages by payment of double compensation even if infringement was committed innocently). Moreover, the circumstances which a copyright owner has to prove when claiming for damages are precisely described in Copyright Act, and Copyright Act incorporates no reference to provisions of Civil Code on torts. The above observations lead the author to the conclusion that claim for damages in copyright infringement has a particular character. Presently, a copyright owner claiming damages will have to prove that copyright infringement caused her/him damage. However, he/she will not be required to prove the actual amount of such damage, because he/she may claim double/triple compensation even if actual damage was minimal, and the amount of actual damage is irrelevant when double/ triple compensation is claimed as damages. Moreover, according to new law on copyright infringement remedies copyright owner may claim damages (including double/triple compensation) and accounts of profits at the same time. Previously, accounts of profits and claim for double/triple compensation excluded each other.

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