Considering the above principles for an award of exemplary damages, and the circumstances of
the Plaintiff‘s case which have been discussed above, the jingle was not used to commercially
benefit the Defendant personally through infringement of copyright is an offence under section
47 of the Copyright and Neighbouring Rights Act. Considering the purpose to which the
Defendant put the Plaintiffs work, though the use amounted to an offence, I find that an award of
exemplary damages is inappropriate.
The question is whether aggravated damages may be awarded in the circumstances? According
to Halsbury's laws of England fourth edition volume 12 paragraph 811:
"In certain circumstances the court may award more than nominal measure of damages,
by taking into account the Defendant's motives or conduct and such damages may be
either aggravated damages which are compensatory in that they compensate the victim of
a wrong for mental distress, or injury to feelings, in circumstances in which the injury has
been caused or increased by the manner in which the Defendant committed the wrong."
Furthermore under paragraph 1114, aggravated damages in tort are where damages are "at large".
This means that they are not limited to the pecuniary loss that can be specifically proved. In such
cases the court may take into account the Defendant's motives, conduct and manner of
committing the tort, and where these have aggravated the Plaintiff‘s damages by injuring his or
her feelings of dignity, and pride, aggravated damages maybe awarded. The Defendant may have
acted with malevolence or spite or behaved in a high-handed, malicious, insulting or aggressive
manner.
The unimpeachable evidence in this case is that the Defendant‘s officials thought that they did
not require the Plaintiff‘s consent for use of her song in the advertisement jingle in question.
DW1 admitted that she knew that the Plaintiff was the copyright owner of the song ―Let‘s go
green‖. Secondly this is an agreed fact in the scheduling memorandum. Being aware of the
copyright ownership of the plaintiff, they used the song with impunity. Subsequently at the
proceedings the Defendant sought to justify their actions without apology. They presented the
position that use of the song for a public purpose was justified. Yet the Plaintiff‘s consent was
not sought. The action of the Defendant‘s officials for which the defendant is vicariously liable
was done in blatant disregard of the Plaintiff‘s copyright. The use did not fall within any of the
permitted uses under section 15 (1) of the Copyright and Neighbouring Rights Act 2006 and
could not therefore be justified. It was not for private use. It was not part of a press summary or
news and it was not used in the context of news reporting. The Plaintiff‘s song was not used for
teaching purposes. There was no acknowledgement of the Plaintiff‘s work and an attempt was
made to deny the Plaintiff‘s copyright during the proceedings. Such a blatant disregard of the
Plaintiff‘s rights may attract aggravated damages at the discretion of the court. According to
David Bainbridge in Intellectual Property 6th Edition at page 175 additional damages are a
form of ―punitive damages‖. In the statutory provision under consideration (The UK Copyright,
Designs and Patents Act 1988) in exercising its discretion the court considers the flagrancy of the