Commercial Court Division
Counsel for the Third Party conceded early on in the proceedings of
this case, that his client has always wished to settle which infers that
the Third Party conceded to unauthorized use of the Plaintiff’s works.
In light of the foregoing, it is clear that the Plaintiff did not permit the
Defendant nor the Third Party to use its copyrights. Therefore it is
this Court’s finding that the artistic works of the Plaintiff protected by
copyright were infringed by the Defendant.
In infringing the intellectual property rights of the Plaintiff, the
Defendant benefited financially and there was value addition to their
product.
The issue of value being added to their product was
properly brought out by DW1 when she was asked what the effect of
using the music was. She stated that since value had been added to
the calls, customers were happy, sales had gone up and the
Defendant had made some money.
The end result is that the Defendant made money by use of the
Plaintiff’s intellectual property without its permission. This amounted
to unjust enrichment.
The third issue is whether the Plaintiff is entitled to any remedies.
Discussing damages in cases of infringement, Copinger & Shame
James on Copyright 13th Edition Pg 343 states:
“ the measure of damages is the depreciation caused by
infringement to the value of the copyright as a chose in
action.
Thus if the Defendant has dealt with the Plaintiff’s
copyright as if he had a licence the Defendant ought to pay
HCT - 00 - CC - CS - 373- 2010
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