The amount of damage will ruled by the judge in the event of an action for damages. Therefore, the judge considers the extent to which there has been a loss as well as the circumstances that also made the claimant responsible. In this case, according to Art. 43 Para. 1 and Art. 44 SCO, the damage may be reduced, and the court can therefore reduce the damages, depending on the degree of culpability of the defendant or if the copyright holder is partially culpable.
6.2.1 Action for damages
To bring an action for damages, the claimant must prove the conditions set out in Art. 41 SCO, i.e. the claimant must have suffered damage, caused by unlawful and culpable conduct by the damaging party.
It is usually easy to prove that an act is unlawful because any use of a work (Art. 10 CopA) without authorisation of the author or without a permission given by the limiting provisions violates the exclusive rights of the author and will therefore be considered unlawful.
For their act to be considered culpable, the person committing the infringement must be aware or should have been aware:
● that the work being used was protected by copyright
● and that their behaviour constituted an unlawful act.
For example, a university webmaster uses images they have found online for the university website. They have some doubts about whether they are protected by copyright but still decide to use them. Given the webmaster’s profession and education, the fact that they are aware of how content is protected would be considered as well as the fact that not looking into whether the images were copyrighted before using them constitutes culpability by negligence.
When it comes to calculating damages, it is the claimant’s responsibility to prove the extent of the damage caused. Essentially, the loss of assets or increase in liabilities directly arising from the illegal conduct must be calculated. For example, the rights holder can request compensation for any loss of profit they have suffered due to uncollected licence fees or even due to expenses associated with fees (e.g. lawyer’s fees or other legal expenses) which had to be paid to safeguard the interests of the rights holder.
In addition, a person can only be held liable if there is natural and adequate causality.
If a work is used in good faith that there is no copyright protection, the liability of the user is in question. E.g. If there any reference to an existing copyright or to an alleged claim from an alleged copyright holder, that is not sufficient to establish that a work is protected (which depends on the conditions laid down by law in Art. 2 CopA in particular). But such hints or claims may serve to rule out any good faith the user might have had. In fact, these hints or claims give the user cause for doubt and they should therefore research the work in question to make sure they are authorised to use it. This is required by the necessary diligence. If they still act without authorisation or outside the scope of an exception to copyright, they run the risk of being taken to court. In this case, the person namely fails to fulfil the necessary diligence in this situation and acts negligently or even with “Dolus eventualis”, which means the person knows about their unlawful behaviour but continues with it regardless.
Yes, disseminating (renting out) DVDs before a new film has been released or while it is being played in cinemas for the first time is not admissible (infringement of Art. 12 Para. 1bis CopA). This constitutes unlawful and culpable conduct. The damage suffered due to loss of revenue was caused by “natural and adequate causality” resulting from the sale or rental of the DVDs, which was in itself a breach of Art.12 1bis CopA (cf. BGE 4a_142/2007 dated 26.9.2007).
The claimant must fulfil the conditions required by Art. 41 SCO. In particular, they must prove the existence of the damage caused by unlawful and culpable conduct, and there must be causal connection between said damage and culpable conduct.
Any act which infringes the exclusive rights of the copyright owner is illegal if it has not been authorised or is not a limiting provision to copyright. Therefore, this infringement must be caused with culpability, which is expressed in negligent or wilful conduct.