it is created. One of the methods of protecting copyright is to discourage people from infringing
copyright owner's rights with impunity. This may be done by an award of damages based on the
common law principle of restitutio in integrum. I fully agree with the plaintiff‘s counsel that
copyright is intellectual property and may have economic rights attached to it under section 9 of
the Copyright and Neighbouring Rights Act as well as moral rights under section 10 of the Act.
Secondly section 45 (3) provides that the grant of an injunction shall not affect the author‘s claim
for damages in respect of loss sustained by him or her as a result of the infringement of a right
under the Act. In other words the statutory provision envisages the protection of copyright
through the grant of an injunction as well as the claim for damages for loss sustained by the
copyright owner.
There was some contention about whether the Plaintiff had proved damages. The Defendant‘s
Counsel submitted that the Plaintiff never proved any loss and never adduced any evidence to
show how much loss she had likely suffered due to the use of the advertisement jingle
incorporating this song "let's go green". On the other hand the Plaintiff's Counsel submitted that
it was difficult to quantify the Plaintiff‘s loss because the Plaintiff continued performing her
other works. The evidence is that the Plaintiff could not perform the song "let's go green" for
over a year which evidence has not been rebutted by the Defendant. The Plaintiff testified that
due to the negative publicity generated by the Defendant's campaign in the advertisement jingle
and the Namanve Forest saga she was unable to perform the song.
The case law quoted by David Bainbridge in "Intellectual Property" is that the normal
measure of damages for copyright infringement is the amount by which the value of the
copyright as a chose in action has been depreciated. This was held in Sutherland Publishing
Company Limited v Caxton Publishing Company Limited [1936] 1 All ER 177 Lord Wright
held at page 180:
―... the measure of damage is the depreciation caused by the infringement to the value of
the copyright, as a chose in action.‖
David Bainbridge (supra) reviews several judicial precedents on the issue of damages, however
the most relevant in the review of the principles to be applied can be found at page 171
considered in light of the submission of Counsel that the Plaintiff cannot prove damage in the
circumstances of the case. According to Bainbridge (supra):
"Where it is not possible to prove any loss, the court may make an award of a reasonable
sum for the use of the claimant‘s materials on the basis of the benefit accruing to the
wrongdoer.
Reference is made to the case of Experience Hendrix LLC versus PPX Enterprises Inc [2003]
FSR 853 for the above principle but the case is no available. However the case of Wrotham
Park Estate Company v Parkside Homes Ltd and others Wrotham Park Estate Company v
Parkside Homes Ltd [1974] 2 All ER 321 considers several judicial precedents in a situation