Lord Esher M.R Interpret Damages for infringement
S J Tubrazy
In an action for infringement of copyright it is not necessary to give proof of actual damage, the damages are at large. Even in a case where the only damage appearing is that the infringement complained of tends to vulgarize the plaintiff’s work, the plaintiff is entitled to nominal damages and costs. The damages assessed may include, in addition to the amount which would have been received by the plaintiff if he had himself been able to sell the copies sold by the defendant, a substantial sum for injury to trade by reason of the fact that the defendant’s price were lower than those usually charged by the plaintiff. Other relevant considerations in the assessment of damages are the profit which the plaintiff would have made and the licence fee that he would have charged.
The Court may award such additional damages as it may consider appropriate when it is satisfied that effective relief would not otherwise be available to the plaintiff having regard to the flagrancy of the infringement and any benefit shown to have accrued to the defendant by reason of the infringement.
As an alternative to damages a plaintiff may have an account of the profits made by the defendant by the use of his work; this remedy is an equitable remedy ancillary to an injunction, and the plaintiff must elect which remedy he will have. Damages may not be awarded where the infringement is shown to have been innocent.
Damages for infringement of copyright may be additional to damages in respect of some other cause of action arising from the same subject-matter.
The damages are classified into general and special damages. General damages flow from the injury the plaintiff has complained. These damages must be averred and proved subsequently. Special damage is the item of loss which the plaintiff alleges to be the result of the defendant’s infringement. The damages are further subdivided into:–
(a) Non-pecuniary damages.
(b) Pecuniary loss.
All who united in the infringement are jointly-and severally liable for the damages regardless of the profits realized by them. (Corpus Juris Secundum, Para. 135).