IS THERE A DEFENCE OF INNOCENCE IN COPYRIGHT INFRINGEMENT CASES?
A limited defence of innocence is available in copyright infringement cases where the infringer can show that he or she had no grounds for suspecting that the act constituted infringement. In those circumstances damages will not run on sales lost by the copyright owner until proof of the copyright works is actually supplied to the infringer. The defence of innocence is difficult to establish in cases of ‘primary infringement’.
Secondary infringement is where the infringing company has not made the infringing product itself but typically has imported it from overseas, often not knowing that it is an infringing product. If the importation was innocent (the importer did not know or did not have reason to believe that the product was infringing) then the copyright owner will only be entitled damages from the time the importer is made aware of the copyright works. A plaintiff may still obtain an account of net profits from an innocent infringer and is still entitled to an injunction to restrain further sales of infringing product.