by Page J in the BanNab Radio case, viz., that it is not justifiable to visit on the defendant the sins of other infringers
who have not been caught and that, moreover, the Act makes provision for substantial criminal sanctions which
should serve the purpose of adequate deterrence. Punishment of a particular defendant by way of an award of
exemplary damages is not the vehicle whereby that purpose is to be achieved. The contrary dicta by Conradie J in
the CCP Radio Co case are, respectfully, not endorsed.
(4) The fact that there is no yardstick by which the additional damages are to be assessed on the grounds of the
flagrancy of the infringement of copyright is no bar to the award of damages. The Court is required to exercise a
value judgment in the matter. The perception of Addleson J in the Trust Butchers case that this was a difficulty in the
way of making an award on the ground of flagrancy was expressed obiter, did not receive endorsement in the two
later cases referred to above and, with respect, evinced a wrong approach.
The question to be answered in the present matter is whether the plaintiffs have in fact been accorded effective
relief or whether, by reason of the factors referred to in section 24(3), such effective relief is not available to them.
A distinction must be drawn between the copies of the films and the copies of the trailers. In the case of the former
the plaintiffs have not only been granted an interdict but have also been awarded damages. It was not suggested
during argument that any expenses which the plaintiffs may have incurred in respect of investigations undertaken
to ascertain whether the defendants had in fact infringed the copyright in question should found an award of
additional damages. The grant of the interdict and the award of damages in my view adequately meet all the
exigencies of the matter, including recognition of the considerations referred to in section 24(3), and the plaintiffs
have therefore received the full relief to which they are entitled. The plaintiffs have accordingly not made out a case
for the award of additional damages in respect of the defendant's infringement of their copyright in the respective
films.
The trailers stand on a different footing. The defendants infringed the respective plaintiffs' copyright in the films
of which the trailers are substantial parts. The establishment of the damage occasioned thereby as envisaged in
section 24(1) would be an extremely difficult, if not impossible, task. The already difficult task of applying the
provisions of subsection (1A) and (1B) would be further bedevilled by the circumstances that is not copies of the
films themselves but copies of trailers thereof that are involved and that the evidence does not disclose what
amount, if any, would be paid for authorisation to use the trailer. Proof of the plaintiffs' damage would accordingly
at best have been an extremely problematical exercise. Effective relief in respect of the infringement of the
copyright in the films has, on that ground alone, been shown to be not available to the plaintiffs and the plaintiffs
are therefore entitled to an award of additional damages. Can the plaintiffs rely in addition on the two features
referred to in subparagraphs (a) and (b) of subsection 24(3)? The answer in respect of the second subparagraph
must be in the negative. There is no evidence as to what benefit accrued to the defendants by reason of their
nefarious use of the offending trailers. The question must, however, be answered affirmatively in relation to the
consideration referred to in subparagraph (a), i.e., that of the flagrancy of the infringement and it may fairly be said
that this consideration increased the damages to which the plaintiffs otherwise were entitled. As to what
constitutes flagrancy reference may be had to the relevant dicta in the
Page 612 of [1996] 1 All SA 584 (SE)
authorities analysed earlier. An application of those dicta to the present matter results in a finding that flagrancy
must be attributed to the defendants. The conduct of the defendants fairly attracts the epithets of deceitful and
scandalously dishonest. The defendants were from the outset fully aware that the cassette tapes in question
contained unlawful material including such trailers as there may have been on the tapes. They were aware of the
odiousness of piracy in the video film industry. Their conduct was deliberate and calculated and was motivated by
monetary gain. The defendants have given no indication of regret or remorse for their conduct. On the other hand
there can be no talk of their actions having occasioned the plaintiffs distress or humiliation, as opposed to
annoyance, and the conduct in question related, after all, only to trailers which were manifestly not the main item
traded in, i.e., the films, and had, as it were, merely been tacked onto the films and they would not have served to
enhance the viewing attractiveness of the tapes to any marked degree. Furthermore, it may be repeated, the
conduct was persisted in only for a relatively short period. These last features, in my view, dictate that the
additional damages awarded be circumscribed in extent. The amount I fix in respect of each trailer is the sum of
R200,00.
The remaining issue is that of costs. It was agreed that the sixth plaintiff, which did not proceed with its claims,
should be ordered to pay the defendants' costs incurred in the action instituted by it up and until the date on which
the actions were consolidated. Mr Vlok realistically did not seek any further order in respect of the costs of the sixth
plaintiff 's action as from the date of consolidation. Mr Vlok did, however, raise a further contention. He submitted
that the costs had been unnecessarily inflated by reason of the plaintiffs having initially instituted separate actions.
Pointing to the circumstance that to a substantial extent the factual evidence on which the respective plaintiffs'
cases were founded was identical and that the same issues of law arose in each case he argued that no sufficient
reason existed why a single composite action should not have been instituted in the first place, a course which
would have circumscribed the costs by avoiding unnecessary duplication of pleadings. Adverting thereto that the
factors relied upon by Mr Vlok were in fact the basis on which consolidation of the action was subsequently sought
and granted Mr Cullabine was constrained to concede the validity of the point taken by Mr Vlok.
In the result the following orders will issue:
(1) The defendants are interdicted and restrained from infringing the respective plaintiffs' copyright in the films
which are the subject of this judgment by doing or causing or authorising in relation thereto any of the relevant acts
referred to in section 23 read with section 8 of the Copyright Act, No. 98 of 1978.
(2) The defendants are interdicted and restrained from doing any act infringing the trade mark(s) of the respective
plaintiffs which are the subject of this judgment.