To bring an action for damages, the claimant must prove the conditions set out in Art. 41 SCO, i.e. the claimant must have suffered damage, caused by unlawful and culpable conduct by the damaging party.
It is usually easy to prove that an act is unlawful because any use of a work (Art. 10 CopA) without authorisation of the author or without a permission given by the limiting provisions violates the exclusive rights of the author and will therefore be considered unlawful.
The notion of culpability includes both negligent and wilful conduct by the person who has committed the infringement.
“Dolus eventualis” is a part of wilful conduct, which means that the offender knows their act might be illegal but continues with it regardless.
For their act to be considered culpable, the person committing the infringement must be aware or should have been aware:
● that the work being used was protected by copyright
● and that their behaviour constituted an unlawful act.
Negligent conduct occurs if the damaging party fails to fulfil the necessary degree of diligence that is required in this situation and that another average careful person would have applied. The degree of diligence to be upheld is assessed on a case-by-case basis. The offender’s education or knowledge of the level of copyright is also taken into account here, i.e. a person involved in copyright (e.g. an editor or a webmaster) should pay closer attention than the “ordinary” user.
For example, a university webmaster uses images they have found online for the university website. They have some doubts about whether they are protected by copyright but still decide to use them. Given the webmaster’s profession and education, the fact that they are aware of how content is protected would be considered as well as the fact that not looking into whether the images were copyrighted before using them constitutes culpability by negligence.
When it comes to calculating damages, it is the claimant’s responsibility to prove the extent of the damage caused. Essentially, the loss of assets or increase in liabilities directly arising from the illegal conduct must be calculated. For example, the rights holder can request compensation for any loss of profit they have suffered due to uncollected licence fees or even due to expenses associated with fees (e.g. lawyer’s fees or other legal expenses) which had to be paid to safeguard the interests of the rights holder.
Causation means the relationship between the unlawful harmful act invoked and the alleged damage. The injured person must provide evidence of causality with a degree of overriding probability. Causation is present if the damage would not have occurred without the unlawful conduct. This is called “natural causality” and is a question of fact. However, liability is present only if it is established that the result caused by the alleged conduct was in the ordinary course of things and a part of general life. In other words, the result must not have arisen due to extraordinary circumstances. This is called “adequate causality” and is a question of law.
In addition, a person can only be held liable if there is natural and adequate causality.