Copyright, Designs and Patents Act 1988, section 97

Provisions as to damages in infringement action

Part I Copyright

(1)Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

(2)The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to—

(a)the flagrancy of the infringement, and

(b)any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require.

Definitions used in section 97 1

the court

27 (1) In this Act “the court” means—

(a)in England and Wales, the High Court or any patents county court having jurisdiction by virtue of an order under section 287 of the Copyright, Designs and Patents Act 1988,

(b)in Scotland, the Court of Session, and

(c)in Northern Ireland, the High Court.

Defined in Sch.4 para.38 · see it in the full Act

“the court” shall be construed in accordance with section 27 of this Act ;

Defined in Sch.4 para.38 · see it in the full Act

Cases considering section 97 40

Phonographic Performance Ltd v Ellis (t/a Bla Bla Bar)

[2018] EWCA Civ 2812 · 18 December 2018Interprets

The court interpreted section 97(2) as creating a sui generis statutory remedy which may include punitive, restitutionary or disgorgement elements. The power remains discretionary and is distinct from a fine. (see paras [3]-[4]; [34]-[37]; [58]-[62])

MCA Records Inc & Anor v Charly Records Ltd & Ors

[2001] EWCA Civ 1441 · 5 October 2001Interprets

Section 97(2) requires the inquiry court to consider all the circumstances, including flagrancy and benefit, when deciding whether justice requires additional damages. A trial judge’s finding of flagrancy is relevant but does not determine that ultimate issue.

Charles And Ivy Ltd & Anor v Chelsea Supplies Ltd

[2026] EWHC 2556 (IPEC) · 9 October 2026

Applies section 97(2) to award additional damages where the circumstances, particularly flagrancy and benefit, make an award just. The court assessed £3,000, avoiding double recovery of the compensatory fee (see paras [59]-[67). Applies the flagrancy limb to deliberate use by an agent who knew or had reason to believe copyright subsisted. Prompt removal and the short period of use reduced the award but did not displace flagrancy (see paras [61]-[62]; [66]-[67]). Applies the benefit limb to the earlier presentation and launch of a competing business using the images. The relevant benefit need not be limited to proven additional sales or profit (see paras [63]; [66]-[67]).

20 more judgments, and what each says about section 97, are in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Modifications

  1. C45Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)