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Illegal copyright works and the remedial discretion of the court

Jani McCutcheon and Jordan Leahy

Keywords: constructive trust; copyright; illegality; public policy; remedies

Copyright works are frequently created in breach of one or more laws. These works vary in degrees of wrongfulness and the laws and interests that are impacted by them. The works may contain illegal content, such as child pornography. Laws may also be contravened in the process of creating copyright material, such as a graffiti artist committing trespass. Courts’ remedial responses to these ‘illegal works’ generate important social and policy issues. Granting owners of copyright in illegal works the full panoply of remedies might incentivize or normalise illegal behaviour and effectively reward wrongdoing. And yet, moderating remedies may appoint judges as moral guardians. Focusing on Anglo-Australian law, this article examines whether the unlawfulness infecting illegal works can and should be considered by courts in exercising their remedial discretion in two main contexts. First, it investigates when and why courts have refused to enforce copyright on public policy grounds, and attempts to distil relevant principles from diverse decisions. Second, the article considers the relevance of illegality when courts exercise their equitable jurisdiction, focusing on the remedy of a constructive trust which grants the benefit of copyright to the victim of the author's wrongdoing. The article argues that, in narrow circumstances, courts should have the flexibility to offset the illegality on public policy grounds and by imposing a remedial constructive trust.

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