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IV. INFRINGEMENT AND ENFORCEMENT
this proportion may be like taking the whole book: a newspaper that publishes the juiciest
chapter in a biography might so satiate the market that demand for the book on general release
might be much less, even zero. More often, the loss would be less. One might start with the
proportion of pages taken in relation to the whole book and then increase or lower this rate
depending on the importance of the chapter, the cost to the infringer of substitutes, the infringer’s
profit on the enterprise, and the likely effect on the copyright owner’s own sales or future
licensing efforts.
- The plaintiff should be restored, so far as money can do so, to
the position he would have occupied if the infringement had not
occurred. Difficulties in assessing such compensation should
not deter the making of a substantial award
EXAMPLE 1:
A firm asked an artist to copy a Christmas card titled “Un Noël de Rêve” that
the firm’s manager bought from a retail store. The firm had 1,300 of the copied
cards printed for $C 165 and sent them out for New Year to its customers. The
plaintiff claimed the full retail price of 1300 cards as damages, over $C 2,000.
The defendant offered $C 500, being what the plaintiff had charged a third party
for a licence to reproduce, for publicity purposes, another similar card (“Toutes
voiles au vent”) by the same artist. The court accepted the defendant’s theory
for assessing damages, but awarded $C 800.
Cartes-en-Ciel Inc. v. Boutique Elfe Inc. (1991) 43 C.P.R. (3d) 416 (Canada:
Court of Quebec)
JUDGE POIRIER:
The defendant did not make a profit by infringing the copyright. She did not sell the cards to her
customers and nothing indicates that the boutique’s sales increased as a result of the distribution
of these cards. ...
[The plaintiff] sold the cards for $ 1.75 each. As a result, as the defendant had 1,300 cards
printed, she would have had to pay $ 2,275 if she had purchased them from the plaintiff. The
plaintiff claims this amount.
However, the price of $ 1.75 appearing on the cards is the retail price. The plaintiff cannot claim
to be entitled to $ 1.75 times 1,300 cards, since if the 1,300 cards had been sold, the plaintiff
would not have received $2,275, but rather a lesser amount. The plaintiff has not established the
cost nor the profit which could have resulted from the sale of the cards. He cannot also claim
that the defendant used these cards in order to misappropriate moneys which should have
lawfully gone to him.
The defendant submits that if damages are granted, they should be limited to an amount
corresponding to the plaintiff ’s publication royalties [being no more than the $500 charged and
received for “Toutes voiles au vent”. The plaintiff claims] that the work “Un Noël de Rêve” was
much more popular than “Toutes voiles au vent”...
“[I]t should be remembered that copyright is a property that is a wasting asset. It is subject to
depletion. Every time an infringement takes place so much of the plaintiff ’s property has been
taken and consumed, never to be recovered. Copyright is not an inexhaustible store that can be
drawn on at will without detraction.”
