(3) Where, in an action for infringement of copyright, it is established that an infringement was committed but it is also established that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright, the plaintiff shall not be entitled under this section to any damages against the defendant in respect of the infringement, but shall be entitled to an account of profits in respect of the infringement whether any other relief is granted under this section or not.
(4) Where, in an action under this section—
- (a) an infringement of copyright is established; and
- (b) the court is satisfied that it is proper to do so, having regard to—
- (i) the flagrancy of the infringement;
- (ii) any benefit shown to have accrued to the defendant by reason of the infringement; and
- (iii) all other relevant matters,
- the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.
Delivery up of infringing copies
120. Subject to this Act, the court may, in addition to any relief granted under section 119 in any action for an infringement of copyright brought under that section, order—
- (a) any infringing copy, or any plate or similar contrivance used or intended to be used for the making of infringing copies of sound recordings or audio-visual productions, in the possession of the defendant or before the court to be delivered up to the plaintiff; or
- (b) the defendant to pay to the plaintiff such damages as the court thinks just and equitable.
