dicta in Performing Right Society Ltd v Berman and Another 1966 (2) SA 355 (R) at 357 and the CCP Record Co case,
referred to below, at 448G.
The plaintiffs are further entitled to damages. The first category of damages in respect of which Mr Cullabine
sought an order is that referred to in section 24(1) of the Copyright Act which provides that infringements of
copyright shall be
Page 602 of [1996] 1 All SA 584 (SE)
actionable at the suit of the owner of the copyright for such relief in the form of, inter alia, damages as would be
available in any corresponding proceedings for the infringement of other proprietary rights. Section 24(1A) provides
as follows:
"Damages contemplated in subsection (1) may, at the option of the plaintiff, be calculated on the basis of a reasonable
royalty which would have been payable under the circumstances by a licensee or sublicensee in respect of the copyright
concerned."
The option referred to in the subsection was exercised by the plaintiffs. It was the initial simple submission of Mr
Cullabine that the section meant no more and no less than that in casu the respective plaintiffs were entitled to
damages in the sum of R50 000,00 in respect of each copy of a film the copyright in which formed the subject of the
claim of the respective plaintiffs, the said sum having been agreed upon between the parties as representing the
minimum figure of the royalty which would have been payable as contemplated in the section. Counsel did not
contend that the damages should be fixed with reference to the figure of R70 000,00 being the agreed average
royalty which would have been so payable. The argument, however, overlooked the provisions of subsection (1B)
which reads as follows:
"In the determination of the amount of damages referred to in subsection (1A) the court shall, in addition to all other
material considerations, take the following factors into account:
(a)
the extent and nature of the infringement of copyright;
and
(b)
the amount which could be payable to the owner in respect of the exercise of copyright by some other person."
In his work, Handbook of South African Copyright Law, at 147/48, the learned author, Dr Dean, states the following
in regard to subsections (1A) and (1B) which were introduced into the Act in 1992:
"In lieu of the erstwhile remedy of an account of profits, the Copyright Amendment Act, 1992, introduced specific reference
to a reasonable royalty as a form of compensation to a copyright owner for the misuse of his work, apparently as an
alternative to conventional damages which would usually take the form of loss of profits through diminished exploitation of
the work by the copyright holder. The payment by an infringer of a reasonable royalty to the copyright owner for the
unauthorised use made of his work as a form of compensation arising from copyright infringement is not new in our law.
Damages in this form have been awarded by the court in the past in several cases. However, the compensation by way of a
reasonable royalty provided for in the amendment has something of a notional character to it. More specifically the
amendment provides for a reasonable royalty which would have been payable under the circumstances by a licensee or
sublicensee, and that the court, in determining the amount, must take into account the extent and nature of the
infringement of copyright and the amount which would be payable in respect of the exercise of copyright by some other
person. In other words, the reasonable royalty is not necessarily the actual amount which the infringer would have been
required by the copyright owner to pay in respect
Page 603 of [1996] 1 All SA 584 (SE)
of the exercise of the right in question but rather an amount that a notional licensee could have been required to pay. ..."
After further debate at the Bar Mr Cullabine conceded that his initial submission was incorrect and that the proper
approach was to read the two subsections together and to adjust whatever figure was arrived at on an application
of subsection (1A) in the light of the considerations referred to in subsection (1B). The concession was rightly made.
This approach not only accords recognition to the words "calculated on the basis of " in subsection (1B) which are
used in contradistinction to words such as "fixed in a sum equal to" but also accords a meaning to the provisions
of subsection (1B) in the context of both sections read together. A different approach would have the effect of
rendering the provisions of the latter subsection pro non scripto.
The figure arrived at on an application of the provisions of subsection (1A) is, in terms of the agreement between
the parties, the sum of R50 000,00 per film. What adjustment thereof must be effected by reason of the
considerations referred to in subsection (1B)? It seems to me that what is required of the Court is essentially the
exercise of a value judgment.
In regard to the provisions of paragraph (a) of subsection (1B) the evidence discloses that the conduct of the
defendants consisted of their retaining in their possession the infringing copies for the purpose of utilising same to
make unauthorised copies to replace copies in their stockintrade as and when the latter became damaged and
utilising same for that purpose. That was the nature of the infringement. As to the extent thereof the evidence only
discloses the extent to which the defendants engaged in the activity of retaining the infringing copies in their
possession for the purposes mentioned, viz., the retention of each infringing copy for a period of a month or two.
The evidence does not reveal the extent to which the defendants actually implemented that purpose. In my
judgment, on an overall conspectus of all the relevant evidence, the extent and nature of the infringement of
copyright are not to be overstated.
As to the consideration referred to in subparagraph (b) of subsection (1B) the only evidence before me is that
contained in a paragraph in exhibit "I", the statement of the first defendant submitted to the police. Subject to what