Performance damages: a reader asks ...

One of the IPKat's friends -- an intellectual property practitioner in one of the English-speaking jurisdictions in Africa -- has expressed an interest in the assessment of damages for copyright infringement. He asks, specifically:
"Is there any case law that you are aware of that determines what falls to be paid by a user if no agreement was arrived at prior to a public performance?"
We know the basic theory regarding damages for copyright infringement. The wrong is a tort/delict/breach of statutory duty (call it what you will) in respect of which damages are principally compensatory.

Right: This performing cat -- a dancing cat -- is one of a number of enjoyable pieces found on the Graf Gallery website

This principle is fine-tuned when the infringing act covers the sort of activity that is normally licensed, when compensation will generally be fixed with an eye to (i) what sort of licence fee would normally be charged or (ii) how much a willing licensee would be reasonably expected to pay to a willing licensor. But it would be great to look at extant case law and see how the courts have handled the issue on our questioner's facts. If you've any useful cases to share with him, please let the IPKat know. It doesn't matter which jurisdiction they're from, since it will be fun to compare decisions from different places.

Please post any responses below or email them to the IPKat here. All useful data will be posted on this weblog for the edification of all readers.
Performance damages: a reader asks ... Performance damages: a reader asks ... Reviewed by Jeremy on Saturday, December 06, 2008 Rating: 5

1 comment:

  1. An usual plaintiff would be a local collecting society rather than an individual composer or playwright. That being the case, such body is likely to have a licensing regime detailing how royalties are computed, and that should be the basis on which the plaintiff would persuade the court to adopt.

    The case below is one such example, in which the court adopts the collecting society's usual way of granting licenses annually, rejecting the infringing party's argument for limiting damages to an one-off license. It is case from Hong Kong, whose copyright law largely follow that of English law.

    P.S. I suspect many such cases are settled out of court. Hence there's hardly any case law on this point. Of course, there are many American cases, but many of them center on whether statutory damages ought to be awarded, which isn't of much use in other jurisdictions.


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