said by jkoblovsky:(s. 38.1). The Act sets out that the Court should consider all relevant factors, including (but not limited to):
(a) good faith or bad faith of the defendant;
(b) conduct of the parties before and during the proceedings;
(c) the need for deterrence (with respect to the copyright in question);
(d) the need for an award to be proportionate to the infringement, including consideration of hardship, whether the infringement was for private purposes, and the impact of the infringements on the plaintiff.
In a case that would set a precedent going forward,
(a) good faith or bad faith of the defendant;
Needs to be tested to determine that precedent going forward. It's a contradiction, economics would be argued at that time. Not willing to argue any more legal points on this until you sign your name to it.
Yes. Those factors are used to determine how the Court exercises its discretion in awarding the amount of statutory damages, as set out at the beginning of that subsection. The Court's discretion, set out in section 38.1, is the quantum of damages awarded, somewhere between the minimum and maximum ($100 to $5000 in a non-commercial case). This is what I've said three times now.
The statutory damages section does not allow the Court to use the considerations you've listed to determine whether there was, in fact and in law, copyright infringement. Nowhere does the section allow for an award of $0, or a determination that the infringement alleged is legal because there wasn't economic harm.
There is no doubt that economic arguments can be meaningful in the damages awarded in copyright infringement cases, but the apparent broad claim of your topic is patently false. It is not legal to infringe copyright simply because the rights-holder cannot prove economic harm.
The difficulty or impossibility of proving harm in some cases is exactly the conundrum the statutory damages section was intended to resolve - if you can't prove harm, you, at the very least, get $100 as nominal damages for your copyright being infringed.
As a side note, there is one other area of copyright law where an economic argument is meaningful. In determining fair dealing, Courts will consider the "effect of the dealing on the work" - meaning the market for the work - as one of a six-part fairness test outlined in CCH v. LSUC.
~ Eric V.