The case of Absolute Lofts South West London Limited v Artisan Home Improvements Limited and another (2015) EWHC 2608(IPEC) is an Intellectual Property Enterprise Court case, where the judge was asked to determine the damages for use of over twenty photographs on the website of a home improvement services company, in circumstances where the photographer’s consent had not been obtained to their use.
There appeared to be at best overlap and at worst conflict between the provisions of (a) Article 13(1)(a) of the Directive on the Enforcement of Intellectual Property Rights (2004/48/EC), on the one hand (the “Enforcement Directive”); (b) the “user principle” (that fair damages for an infringement are linked to a reasonable licence fee for use of the relevant photographs) and (c) section 97(2) of the Copyright, Designs and Patents Act 2998 (CDPA).
The judge made the point that the Enforcement Directive should not be construed so as to sweep away national legal provisions, which may be potentially more favourable to a rights holder. Rather, the relevant provisions of the Enforcement Directive should give rights holders an additional basis for recovery of (potentially) additional damages.
In this case the judge awarded the photographer £300 under the user principle, and a further £6,000 for the barefaced cheek of the infringement, which he justified on the basis of both the relevant provisions of the Enforcement Directive and the CDPA (without deciding between them).