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Aggravated, Exemplary and Restitutionary ... - Law Commission

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one case, 831<br />

<strong>and</strong> arguably done so in another. 832<br />

We consider that consequential<br />

amendments are required to each of these statutes.<br />

(a) Reserve <strong>and</strong> Auxiliary Forces (Protection of Civil Interests) Act<br />

1951, s 13(2)<br />

1.280 The first amendment needed is to section 13(2) of the Reserve <strong>and</strong> Auxiliary<br />

Forces (Protection of Civil Interests) Act 1951, which authorises an award of<br />

“exemplary damages”. It would be undesirable if that power could be construed<br />

as authorising the courts to award a ‘punitive’ sum of damages which was<br />

governed by principles other than those stated in our draft Bill. 833<br />

We therefore<br />

recommend that:<br />

(46) section 13(2) of the Reserve <strong>and</strong> Auxiliary Forces (Protection of<br />

Civil Interests) Act 1951 should be amended, so that, in place of<br />

‘exemplary damages’, it authorises an award of ‘punitive damages’<br />

to which our Act applies. (Draft Bill, clause 14(4))<br />

(b) Copyright, Designs <strong>and</strong> Patents Act 1988, ss 97(2), 191J <strong>and</strong> 229(3)<br />

1.281 The second set of amendments is to sections 97(2), 191J <strong>and</strong> 229(3) of the<br />

Copyright, Designs <strong>and</strong> Patents 1988. These sections provide, respectively, for an<br />

award of ‘additional damages’ for infringement of copyright, performer’s property<br />

rights <strong>and</strong> design right. We have seen that the proper characterisation of<br />

additional damages is controversial. 834<br />

In our view the appropriate course is to<br />

repeal sections 97(2), 191J <strong>and</strong> 229(3), <strong>and</strong> we so recommend:<br />

(47) sections 97(2), 191J <strong>and</strong> 229(3) of the Copyright, Designs & Patents<br />

Act 1988 should be repealed. (Draft Bill, clause 14(5))<br />

1.282 We consider it necessary to take this step for several reasons. Repeal of those<br />

sections will eliminate the uncertainty which has surrounded additional damages;<br />

the remedy (whatever its proper characterisation) shall thereafter be unavailable.<br />

But this will not leave any significant lacunae in the law’s protection of intellectual<br />

property rights.<br />

1.283 We have recommended 835<br />

that punitive damages should be available for a statutory<br />

civil wrong if an award would be consistent with the policy of the statute in<br />

question. All of the wrongs which are affected by recommendation (47) fall into<br />

this category. And, we firmly believe, it would be consistent with the policy of the<br />

Copyright, Designs <strong>and</strong> Patents Act 1988 if punitive damages could be awarded in<br />

831 Reserve & Auxiliary Forces (Protection of Civil Interests) Act 1951, s 13(2).<br />

832 Copyright, Designs & Patents Act 1988, ss 97(2), 191J <strong>and</strong> 229(3).<br />

833 For example, the power might not be subject to the requirement that the defendant has<br />

shown a ‘deliberate <strong>and</strong> outrageous disregard of the plaintiff’s rights’, or to the ‘if, but only<br />

if’ test, or to the various other principles which govern the availability <strong>and</strong> assessment of<br />

‘punitive damages’ under our Act.<br />

834 See paras 4.21-4.22 above.<br />

835 See recommendation (19)(b) <strong>and</strong> paras 5.57-5.65 above.<br />

179

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