has been said earlier in this judgment the first defendant confirmed the correctness of the contents of the
statement. Paragraph 11 of the statement records that at the relevant time new and properly authorised copies of
films cost approximately R200,00 to R250,00 per copy. That was therefore the amount which could be payable to
the owner in respect of the exercise of copyright by the "other person" referred to in subparagraph (b).
Subsection (1B) further enjoins the Court, in assessing the quantum of damages, to take into account, in
addition to the matters referred to in subparagraphs (a) and (b) "all other material considerations". Subject to what
is said later in this judgment it is not necessary for me to discuss what factors would or could fall within the ambit of
this phrase; counsel presented no argument thereanent.
In the exercise of the value judgment which I am enjoined to do in this matter I am faced with the difficulty of
where to draw the line between the figures of R200,00/R250,00 (being the figure i n c a s u envisaged in
subparagraph (b) of subsection (1B)) and the figure of R50 000,00 (being the figure in casu envisaged in subsection
(1A)). On a conspectus of all the relevant circumstances and in particular the somewhat limited scope of the extent
and nature of the infringement
Page 604 of [1996] 1 All SA 584 (SE)
of copyright in respect of each relevant film and of the inroad into the licensee's rights in respect of the marketing of
the film, I have come to the conclusion that a figure of R1 500,00 in respect of each film would be fair and
reasonable. I place on record the confession that the fixing of the award in this figure is characterised by a measure
of arbitrariness; it is a matter of assessment rather than computation.
The other damages claimed are those envisaged in section 24(3) of the Copyright Act. The section reads as
follows:
"Where in an action under this section an infringement of copyright is proved or admitted, and the court having regard, in
addition to all other material considerations, to
(a)
the flagrancy of the infringement; and
(b)
any benefit shown to have accrued to the defendant by reason of the infringement,
is satisfied that effective relief would not otherwise be available to the plaintiff, the court shall in assessing damages for the
infringement have power to award such additional damages as the court may deem fit."
Mr Cullabine, adverting to the fact that in terms of section 27(6)(a) of the Act a person convicted of infringing
copyright in an article is, in the case of a first conviction, liable to a fine not exceeding R5 000,00 or to imprisonment
for a period not exceeding three years, or to both such fine and imprisonment, for each article to which the offence
relates, adopted the stance that an appropriate award in respect of each offending film or trailer would be in the
sum of R5 000,00. It was his submission that such an award was justified by reason of the following considerations
which he contended were present:
(a) the conduct in question of the defendants in infringing the copyright of the plaintiffs had indeed been flagrant;
(b) a benefit, albeit unquantified, must have accrued to the defendants in consequence of their infringing conduct;
(c) by reason of the evil done in the video cassette industry by large scale piracy (testimony concerning which was
given by a number of witnesses including testimony that an estimated 15% of the total annual countrywide
turnover in the industry constituted pirate turnover involving many millions of rands evidence which was not
disputed by the first defendant who himself spoke of the evil of piracy and registered his strong objection thereto)
there was a need to effect a deterrence thereof by way of such an award;
(d) effective relief would not otherwise be available to the plaintiffs.
The approach of the courts to an application for an award of damages in terms of section 24(3) has not been
harmonious. In South African Music Rights Organisation Ltd v Trust Butchers (Pty) Ltd 1978 (1) SA 1052 (E), which
concerned an infringement of copyright in certain musical works by way of playing a radio in a butchery shop,
Addleson J had to consider an application for an award of "exemplary" or "penal" damages under section 18(3) of
the Copyright Act of 1965 (the precursor of section 24(3) of the present Act). He held as follows (see 1057H et
seq.): Such damages could not be awarded under section 18(3)(b) since it had not been "shown" that any benefit
had accrued to the defendant, by reason of the infringement, on which such damages could be calculated.
Difficulties in
Page 605 of [1996] 1 All SA 584 (SE)
the way of making such an award under section 18(3)(a) by reason of the alleged flagrancy of the infringement
were the following: Firstly, such additional damages were only permissible if the court were satisfied "that effective
relief would not otherwise be available to the plaintiff ". The award to the plaintiff of the actual pecuniary loss it had
suffered together with the grant of an interdict did in fact accord effective relief. Secondly, no yardstick was
available by which such damages could be assessed and although it was suggested by Copeling (Copyright Law)
that the amount to be awarded was entirely in the court's discretion he could not simply pluck a figure out of the air
without some basis on which to assess it. Thirdly, although the defendant's conduct was open to criticism it did not
seem to be comparable to the type of conduct referred to in English cases or by the English writers as a "flagrancy"
deserving of a special award of exemplary damages. The case was accordingly not an appropriate one for an award
of damages beyond the normal ambit of compensation for pecuniary loss.
I n Priority Records (Pty) Ltd v BanNab Radio and TV; Gramophone Record (Pty) Ltd v BanNab Radio and TV
1988 (2) SA 281 (D) it was found that the defendant had breached the copyright of the respective plaintiffs by