United States of America
Canada
Copyright and Related Rights
9. Please explain the criminal and civil remedies available for copyright infringement and the extent to which they fully implement the obligations in TRIPS Articles 41, 45, 50 and 61. In the response, please specify, inter alia, whether these remedies may include the seizure, forfeiture and destruction of infringing articles and equipment used to make the infringing articles, as required by Article 46 and 61, and the manner in which the grant of civil provisional relief is provided in accordance with TRIPS Article 50.
In an appropriate case, the plaintiff may obtain an ex parte "Anton Piller" order permitting the plaintiff's solicitor to enter the defendant's premises without warning to search for infringing goods and relevant documents. Governed by the same factors as in other actions, interlocutory injunctions are available where just and equitable in the circumstances. A successful plaintiff is generally entitled to a final injunction in addition to the other civil remedies available for infringement of copyright, such as damages and an account of profits. Exemplary damages may be awarded in copyright actions where the defendant has wilfully and flagrantly ignored the plaintiff's legal rights and the process of the court. Copyright Act, Section 38, specifically provides for delivery up and conversion of infringing copies. There are criminal offences and punishment with respect to direct and indirect infringement and prohibitions of making or possessing a plate for the purpose of making infringing reproductions. Furthermore, the court is given power to deal with infringing reproductions, fixations or plates which may be ordered destroyed or delivered up to the copyright owner. Finally, the Criminal Code includes offenses of fraud, conspiracy, and unauthorized use of computers and mischief in relation to computers. These Criminal Code provisions have had some incidental effect with respect to protecting the rights of copyright owners.