Commercial Court Division
as damages an amount equivalent to the fair fee or royalty
which he would have to pay for licence to do the acts, which
he has done and damages may be said to be at large.”
It is therefore not only the money acquired from the caller tune fee
by the Defendant that should be considered but also the depreciation
in value of the song.
Just as PW2 testified if every time a person
uses his phone he hears the same caller tune he is not likely to go to
a shop and buy a recording of that music.
The caller tune project
might popularize a song without increasing the song’s sale on the
market. The song even in its popularity does not benefit copyright
holder, in this case the Plaintiff, because while the song is being
heard many times, no CD is leaving the shops. Similarly, while no
CD is leaving the shops, the song is depreciating.
In the instant case however, Counsel for the Plaintiff did not assist
Court much in assessing how much depreciation of the songs had
taken place.
This Court however cannot sit and fold its hands in
resignation. Where the Plaintiff cannot prove actual damage the
correct measure of damages is what the Plaintiff would have charged
for the use of his or her property by the Defendant.
The Plaintiff can only recover the actual loss suffered which is proved
on the balance of probabilities. Wrotham Park Estate Company V
Parkside Homes Ltd [1974] 2 All ER 321.
The big question is thus: How much?
Discussing the cost of a song, PW2 during cross-examination listed
the avenues to which money is spent to produce a song. She said
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