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NO. 22 OF 2021
(3) Damages under subsection (1)(b)(i) may take into account any profits that are attributable to the infringement.
(4) For the purposes of subsection (1)(b)(ii)—
- (a) a claimant may only be awarded a total of $20,000 in statutory damages in a single action, even if the action involves 2 or more infringements; and
- (b) in deciding the amount of statutory damages to award, the Court must consider all relevant matters, including—
- (i) the nature and purpose of the act constituting the infringement, including whether the act is of a commercial nature or otherwise;
- (ii) the flagrancy of the infringement;
- (iii) whether the defendant acted in bad faith;
- (iv) any loss that the claimant has suffered or is likely to suffer because of the infringement;
- (v) any benefit gained by the defendant because of the infringement;
- (vi) the conduct of the parties before and during the proceedings; and
- (vii) the need to deter similar infringements.
(5) In this section, an article is an “offending article” if—
- (a) the article was used, or is being used, to carry out an infringement of a provision of this Division; or
- (b) an infringement of a provision of this Division was or is being carried out in relation to the article.
Offence
439.—(1) Subject to this section, a person commits an offence if—
- (a) the person—
- (i) wilfully circumvents an access control measure; or
- (ii) wilfully deals in a circumventing device or service;
