Licensees in Breach: The Interface between Remedies for Copyright Infringement and Remedies for Breach of Contract

Antoni Rubi-Puig (University Pompeu Fabra), “Licensees in Breach: The Interface between Remedies for Copyright Infringement and Remedies for Breach of Contract”

This article discusses the relationship between remedies for breach of contract and actions for copyright infringement when a contract or license on a copyright protected work is breached by a licensee. Coexistence of two substantive and procedural regimes which attach different consequences –among others, differences affecting the scope of damages awards, the availability of injunctive relief, and the use of secondary liability rules for contributory infringement- calls for criteria aimed at establishing their respective scope of application and for analyzing their interrelation.  After describing the basic differences between the two legal regimes, the article evaluates three general solutions to the problems posed by the interaction between contract law and copyright. Although the accessibility to two different sets of remedies creates an opportunity for licensors to obtain supracompensatory damages in cases of licensee’s breach, making copyright actions available may prove necessary to provide incentives to negotiate and to safeguard licensors’ interest in avoiding degradation of final users’ experiences, especially in online platforms.