Last week, we mainly discussed the civil remedy of injunction. You can read this up here. On this occasion, damages, as one of the most essential civil remedies for copyright infringements, is what we will be focusing on.

Infringement of copyright amounts to an injury to the copyright owner. The damage suffered may have affected his pecuniary interest in the infringed work. Therefore, damages, as a remedial award, aimed at restoring the plaintiff to the original position he ought to have been before the violation of his copyright. It is aimed at compensating the plaintiff, as much as it is practicably possible, for the loss occasioned by the injurious infringement.[2]  The person bringing an action for infringement may be awarded general damages, special damages and/or exemplary or punitive damages, depending on the facts of the case, the proof of infringement and the nature or degree of the infringement.[3]
While general damages are damages which naturally flow from the defendant’s conduct and its quantum need not be pleaded or proved as it is generally presumed by law, special damages are not presumed, but specifically pleaded and proved. Exemplary, punitive or aggravated damages are not awarded to merely compensate the plaintiff, but to punish the defendant and also make him the scapegoat for the purpose of also deterring others from similar action in the future.
In the case of Masterpiece Investment Ltd. v. Worldwide Business & 2 Ors,[4]the defendants published an article for commercials in the December edition of Business Magazine in 1989. This article was similar to a previous article published on the same magazine in October of the same year. On an action for infringement of copyright, the court held that the defendants were liable. The plaintiffs claimed to have suffered general damages of 300,000.00 naira, special damages of 200,000.00 naira and exemplary or punitive damages of 500,000.00 naira making a total of 1,000,000.00 naira damages. [5]In awarding damages, the court presided by Odunowo J, took into consideration the loss of clients which the plaintiffs had suffered in their business occasioned by the injury, the embarrassment and degradation suffered in the industry, emotional pains and loss of respect from professional colleagues. The sum of 300,000.00 naira was awarded as general damages, 200,000.00 naira for special damages and exemplary damages of 100,000.00 naira.           
Perhaps, because of the increasing importance of copyright to economic development and national advancement, certain kinds of infringement of copyright are greatly frowned at by the court in its enforcement of copyright. Exemplary, punitive or aggravated damages, having a semblance with criminal sanctions, are usually awarded where the infringement is a flagrant one.[6]In Oladipo Yemitan v. Daily Times of Nigeria Ltd.,[7]without authorisation the defendant republished in another publication, “Headlines”, an article that had been written and published by the plaintiffs in “Nigeria Magazine”. In an action for infringement of his copyright, the court awarded 10,000.00 nominal damages and 15,000.00 naira exemplary damages. In the judgment of the court per Belgore J, it was held that:

In the circumstances of this case, I have no doubt that the defendants flagrantly infringed the copyright f the plaintiff taking advantage that a few artists in this country are aware of their right under copyright law, and the defendants believing that the profit to be realized from the infringement, were litigation to be undertaken, would outweigh any nominal damages the plaintiff would be entitled. The flagrant way the plaintiff’s work was infringed; the apathetic manner his letters and those of the officers connected with the Nigeria Magazine were treated and the nonchalant attitude in which the defence was  prepared by denying obvious facts and making unfounded assertions only conceding brazenly, liability after a full trial, to my mind, is a clear evidence of the view of the defendant that “it would not cause more than money.” I have no doubt that the defendants were motivated by glitters of profits in infringing the copyright of the plaintiff and perhaps they were intoxicated by actual profit in treating him so contemptuously afterwards.”[8]
In the same case, on the award of exemplary damages, the court relied on the English case of Rookes v. Barnard,[9]where Lord Devlin said:
“Exemplary damages are essentially different from ordinary damages. The object of exemplary damages is to punish and deter.”[10]
He stated the occasions where exemplary damages had been awarded thus:
(i)    Oppressive, arbitrary or unconstitutional action by the servants of government; and
(ii)   Those in which the defendant’s conduct has been calculated by him to make profit for himself which may well exceed the compensation payable to the plaintiff.
Lord Devlin further stated three conditions for the award of exemplary damages:
(i)          The plaintiff must be the actual victim of the punishable behavior of the defendant;
(ii)         The damage must be in defence of liberty as much as against it
(iii)        The means of the parties which is irrelevant in the assessment of compensation will become material in the assessment of exemplary damages.
For the purpose of an effective judicial enforcement of copyright, it is heart-warming to find the courts doing justice to the cases of infringement through the instrument of exemplary, aggravated or punitive damages. Flagrant infringements of copyright have been most prevalent in our society today, thus the infringers must not be allowed to make the law an ass in this area. The burden of proving that there is a lack of requisite knowledge of subsisting copyright and absence of any reasonable ground for suspecting that the copyright subsists in the infringed work is understandably a heavy burden on the shoulder of the defendant. And even where he succeeds in this defense, he may still be liable for account of profits or other available remedies.[11]

[1] S. 15(1) of the Act.
[2] United Horse Shoe v. Stewart (1888) 5 RPC 260 at 267; Blaney v. Clogau St. David Gold Mines(2003) FSR 360 CA
[3] Oladipo Yemitan v. The Daily Times of Nigeria Ltd. (1980) FHCLR 186
[4] (1990-1997) 3 IPLR 345.
[5] At 348
[6] S. 16(4)(a)(b) of the Copyright Act empowers the court to award such additional damages as it may consider appropriate in the circumstances. The flagrancy of the infringement and the benefit or profit accruing to the infringer are specifically stated as two of such facts the court should put into material consideration in the award of additional damages. 
[7] Supra.
[8] At 307
[9] (1964) AC 129; Williams and Settle (1960) 2 All ER 806
[10] At 1221
[11] Odion J. O. and Ogba  N. E. O., op cit 50. See also the wordings of s. 16(3) of the Copyright Act

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  • Thank you Temmy O., for the comment and observation. Section 15(1) was meant, not section 16(1) as previously indicated. The former has now been effected. I hope you will keep visiting and share our blog contents with your contacts too.