in determining the adjustment called for in terms of section 24(1B). The nature of the Defendants' conduct was the
retaining in their possession of the infringing copies for the purpose of utilising them to make unauthorised copies
to replace those in their stock in trade when the latter became damaged. The Court found that the extent and
nature of the infringement of copyright was not to be overstated. In respect of paragraph 24(1A)(b),
Page 586 of [1996] 1 All SA 584 (SE)
the Court utilised the only evidence available to it to establish that new and properly authorised copies of the
relevant films cost between R200,00 and R250,00 each at the time. The Court was therefore faced with determining
a level of damages between the amounts of R200,00 and R50 000,00 and in so doing found the figure of R1 500,00
to be fair and reasonable taking all the circumstances into account.
In respect of the additional damages sought in terms of section 24(3)2 of the Act, Plaintiffs' counsel argued that
an amount of R5 000,00 per item would be appropriate, this being the maximum fine capable of being imposed in
terms of section 27(6)(a) in respect of a person convicted of infringing copyright in an article. Further, it was argued,
such an award was justified as Defendants' infringement of Plaintiffs' copyright was flagrant; a benefit (although
unquantified) may have accrued to the Defendants; the evil done in the video cassette industry by large scale
piracy necessitated a deterrent effect by way of such an award; and effective relief would not otherwise be
available to the Plaintiffs.
Having surveyed the case law concerning section 24(3) and finding it to be disharmonious, the Court found the
following four principles to be applicable to its interpretation: (i) additional damages may only be awarded by the
Court when the Plaintiff already has a cause of action outside [dehors] the provisions of the section and that such
relief cannot effectively be obtained; the Court is not empowered to award any form of damages not otherwise
recognised in our law but may supplement the remedies provided for in sections 24(1), (1A) and (1B) where these
are insufficient to recompense the Plaintiff adequately for all the damage, whatever the legal categorisation thereof,
occasioned to him by the infringement and that the manner in which it would do so is by awarding exemplary
damages; (ii) in determining whether effective relief would otherwise not be available to the Plaintiff, regard will be
had not only to the flagrancy of the infringement and any other benefit shown to have accrued to the accused, but
also to "all other relevant considerations"; the wording of the section makes it clear that the legislature drew a
distinction between the two sets of considerations; (iii) the need to deter not only the particular infringer but also
other potential infringers is not relevant to the "effective relief which would not otherwise be available to the
Plaintiffs' enquiry; 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 did not
achieve that purpose; (iv) the fact that there is no yardstick by which 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 will then
exercise a value judgment.
As to whether or not the Plaintiffs had been accorded effective relief, the Court found that, by their being
granted an interdict and having been awarded damages in respect of the films, the Plaintiffs had received the full
relief to which they were entitled and that there was accordingly no case made out for an award of additional
damages. In respect of the trailers, Defendants had infringed the Plaintiffs' respective copyrights in the films of
which the trailers were a part but that establishing the damage thereby occasioned, in terms of section 24(1),
would be an extremely difficult, if not impossible, task. Effective relief was therefore not available to the Plaintiffs
who were thus entitled to additional damages. The Court found that, although the Plaintiffs could not rely
Page 587 of [1996] 1 All SA 584 (SE)
upon section 24(3)(b) as there was no evidence of what benefit accrued to the Defendants by reason of use of the
trailers, the Plaintiffs could rely upon section 24(3)(a), which concerned the flagrancy of the infringement. Whilst the
Defendants had been aware from the outset that the cassette tapes in question contained unlawful material
(including trailers) and they were also aware of the odiousness of piracy in the video film industry, and whilst their
conduct was deliberate and calculated and motivated by monetary gain, their actions did not cause the Plaintiffs
distress or humiliation; the trailers were manifestly not the main items traded in and such conduct was persisted in
for only for a relatively short period. The Court found that the last features dictated that additional damages
awarded be circumscribed in extent. and fixed the amount in respect of each trailer at R200,00.
In respect of costs, Defendants counsel argued that although the several Plaintiffs'��actions against the
Defendants had been consolidated, an unnecessary duplication of costs could have been avoided should a single
composite action have been instituted in the first place; Plaintiffs' counsel was constrained to concede the validity of
the point taken. In the result, the Court ordered that costs of suit be restricted to such costs as would have been
incurred had the Plaintiffs initially instituted a single composite action.
Notes
For Copyright generally, see LAWSA Reissues (Vol 5(2))
For Copyright, see Copyright Companion, A Smith, Butterworths (1995)
For the Copyright Act 98 of 1978, see Butterworths Statutes of South Africa 1995 (Vol 1)
Cases referred to in judgment
CCP Record Co (Pty) Ltd v Avalon Record Centre 1989 (1) SA 445 (C)
Harnischfeger Corporation and Another v Appleton and Another 1993 (4) SA 479 (W)