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IV. INFRINGEMENT AND ENFORCEMENT
The object of the Copyright Act does not permit the person who has infringed the copyright of
the owner to escape a judgment for damages merely because they are impossible or difficult to
prove ... If damages are difficult to assess or cannot be evaluated, ... “the tribunal must do the
best it can, although it may be that the amount awarded will really be a matter of guesswork” ...
[I]n civil law as in common law, these “real” or actual damages must be direct and ascertainable.The court considers it more appropriate to assess the damage suffered as a function of the
amount that the plaintiff could have demanded for the use and reproduction of its work, rather
than as a function of the retail sale price of the cards representing this work. Considering the
superiority that the author attributes to this work, “Un Noël de Rêve”, over the other, “Toutes
voiles au vent”, and its much greater popularity, recognizing that a certain element of
subjectivity cannot be eliminated in the assessment of any work of this nature, the court sets at
$800 the fair and proper compensation for the damage suffered by the infringement of the
copyright.EXAMPLE 2:Recall Hay v. Sloan (under Subject-Matter, above), where a builder sued
another builder for copying the former’s architectural work, the “Belaire” model
home, by constructing a virtually identical house for a buyer. The defendant
builder was encouraged to copy by a real estate broker, who profited from the
sale. Both the buyer and the broker were also defendants. The broker had
asked the plaintiff for permission to copy the house, but the plaintiff refused. The
court found infringement and granted an injunction to prevent further copying.
The court also granted damages.Hay v. Sloan, (1957) 12 D.L.R. 2d 397 (Canada: Ontario High Court)MR JUSTICE STEWART:Where the plaintiff can establish clearly that the defendant’s profit would have been his but for
the infringement, these profits then become the plaintiff ’s loss and, in that sense, are an element
of damages sustained by him... It was suggested here that the damages to be assessed against
[the builder] and [the real estate broker] would be their respective profit. It has not been
established, however, that the plaintiff would have received such sums had the infringement of
his copyright not occurred. Only such loss as is the “natural and direct consequences of the
infringer’s acts” can be assessed on this basis... Punitive or exemplary damages may be awarded
... and if damages cannot be proved, nominal damages may be allowed, which are not necessarily
small...In other cases it has been held that where it is customary to grant licences the amount of the
royalty payable is the usual measure of damages... There is evidence here that on occasion they
would grant a licence to erect the Belaire at a cost of $60. This sum I regard as being inadequate.The damages being at large, I assess them at the sum of $650, and I must confess that I have
been unable to find any satisfactory measuring rod in so doing, but follow the example of [a
1911 English judge who said that the measure of damages] “is to be dealt with in the rough –
doing the best one can, not attempting or professing to be minutely accurate ...[S]uch matters
should be dealt with broadly and as best we can as men of common sense.”[The court apportioned the damages among the infringers according to their respective
culpability.]