Summary

The provisions of s.97(2) Copyright, Designs and Patents Act 1988 were apt to provide for a measure of damages appropriate in cases of deliberate or reckless infringement.

Facts

The claimant sued the Sun newspaper for copyright infringement of a photograph of a patient at Rampton Hospital ('A'), a convicted killer. The photograph was taken at Rampton hospital and formed part of A's medical notes. It was published in the Sun without the consent of either A or the hospital. It was common ground that the claimant was entitled to the copyright subsisting in the photograph and it sought injunctive relief, an award of damages for infringement, and an award of additional damages under s.97 Copyright, Designs and Patents Act 1988. It contended that having regard to the flagrancy of the infringement and the circumstances surrounding it, the sum awarded by way of additional damages could and should include a substantial punitive or exemplary element. The issue was therefore raised as to the nature of an award of additional damages in copyright actions and the circumstances in which such an award should be made.

Held

(1) Infringement of the copyright had been shown and the reporter who received the photograph on behalf of the Sun knew that the photograph should not have been used. It was nonetheless transmitted to the Sun for use. The use was the direct result of his lack of concern as to the proper use to which the photograph might be put and to his failure to return it to the hospital so that it could be returned to A's medical notes. (2) The measure of damages under s.96 of the Act was assessed according to the principles in General Tire v Firestone (1975) 1 WLR 819. The problem here arose because the photograph was of no economic value to the claimant since it was not intended to be exploited commercially. In circumstances such as the present case, additional damages under s.97 might be appropriate. (3) The authorities (eg Redrow Homes v Betts Brothers (1998) 2 WLR 198; ZYX Music GmbH v King (1997) 2 All ER 129) left open the correct characterisation of damages under s.97(2) of the Act. Section 97 identified two factors in particular as matters to which the court must have attention in considering whether to award additional damages, the flagrancy of the infringement and the benefit to the defendant. (4) The provisions of s.97(2) were apt to provide for a measure of damages appropriate in cases of deliberate infringement. The section did not, in terms, provide that additional damages were to be awarded only in cases of deliberate infringement. The defendant's state of mind was not relevant in cases of primary infringement of copyright by copying. Carelessness sufficiently serious to amount to an attitude of "couldn't care less" was capable of aggravating infringement and of founding an award of damages under s.97(2). Recklessness could be equated to deliberation for this purpose. (5) This infringement, either reckless or deliberate, was certainly flagrant. The standard of journalism involved was irrelevant. The use of the photograph had infringed confidentiality and there was no suggestion of any overriding public interest, as the Sun had many photographs of A which it could have used. (6) In fixing damages under s.96 of the 1988 Act, regard was taken of the fact that the photograph was immediately topical, an apt illustration to the story and was prominent and clear. Infringement damages should be £450, on the basis that it was the fee which would be negotiated between a willing copyright owner and the newspaper. (7) In fixing damages under s.97(2) of the 1988 Act, the award had regard to flagrancy, to the fact that the photograph was obviously stolen, and that the reporter must have realised that it came from Rampton; to the conduct of the Sun in not ensuring that the whole of the story concerning the photograph was made clear at an early stage and some of the evidence destroyed, to the fact that there had never been an apology for its use but most importantly to the fact that its use had caused a degree of upset at the hospital from which the hospital was entitled to be free. (8) The appropriate uplift was to bring the award of damages overall up to £10,000. If this exceeded the sum appropriate under s.97(2) having regard to the benefit to the defendant, then no further infringements of this kind would take place. If further infringements consisting of the publishing of stolen photographs from medical records did take place, it would show that the advantage to the newspaper still exceeded the award of damages.

Judgment accordingly.