Counsel for the defendant on the other hand submitted that plaintiff did not produce any
evidence to show how the alleged infringement affected her sales.
As already stated above there are only two pieces that were infringing on the plaintiffs
works. Section 13(2) of the Copyright Act provides that damages awarded shall be limited to
the loss, if any, incurred by reason of the infringement, together with such additional sum as
may be just having regard to the flagrancy of the infringement, the benefit, if any, gained by
the infringer and such other matters as may be relevant.
The plaintiff was unable to prove that all the impounded items except two were infringed
upon by the defendant. The scope of duplication or flagrancy of these infringed art pieces
was not shown to court in evidence and nor was their retail price or benefit to the defendant
made known to Court. However there is evidence to show that the defendant benefited from
the ideas of the defendant and on two occasions went as far as copying them without the
consent of the plaintiff. This deprived the plaintiff of the fruits of her originality because the
defendant was selling these works without any financial benefit to the plaintiff. In this regard
I would award Ug.Shs.5,000,000/= (five million shillings) as general damages.
As regards the award of exemplary damages counsel for the plaintiff submitted that the
defendant deliberately infringed on the plaintiff’s art works in various ways as particularized
in paragraph 5 (g) of the plaint. He prayed that the award would make the defendant an
example to others.
Since intellectual property rights in Uganda are not well observed an award in exemplary
damages would send a clear signal to the perpetrators of this practice as a caution to end
such behavior. The defendant’s mask on the pot, lantern and calabash was the same exact
mask that the plaintiff had on the wall hanging marked exhibit P3. The defendant in this case
was clearly found in possession of art pieces similar to those made by the plaintiff. Given the
limited scope of remuneration available to authors of artworks I find that an additional
amount by way of exemplary damages of 5,000,000/= as against the defendant is in order
and I so award it.
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