Society of Composers, Authors and Music Publishers of Canada v. 348803 Alberta Ltd.
T-26-97
Hargrave P.
3/7/97
15 pp.
Reference to determine profits, damages, interest, costs owing for use of copyrighted recorded music for dancing, including royalties payable in accordance with applicable tariffs-Defendants, owners of Bar and Grill in Fort McMurray, Alberta, not participating in reference-Where customary to licence use of work, damages measured on basis of usual royalty or licence fee-Licence fees for music calculated using given figures, rates from Copyright Board Tariffs, various statistics as to operation of licensee-Where licence fee alone inadequate recompense, general damages at large may be in order-Recompense in copyright infringement matter may include accounting of profit-Damages and profits not alternative, but cumulative relief-Profits not remedy under Copyright Act, s. 34(1.01), providing for disclosure of sales and accounting material-Claim for profits arising indirectly from reference in s. 34(1.01) to "and otherwise"-Under s. 35(1) profits clearly in addition to damages-Impossible to accurately calculate licence fees owing, profits as no access to defendants' records-Proper to calculate damages, profit in rough and ready manner if necessity to do so result of omissions on part of defendants to provide appropriate information-Licence fees taken from Tariff 18 (fee for recorded music) based on establishment's capacity of 250 patrons, operating between four and seven days per week for full years 1994 through 1996: $2,900.47-As award of usual licence fee, Court's tariff based costs for legal expenses not adequately reimbursing plaintiff for time, trouble taken to enforce rights, proper to transfer portion of profit-Music adding value to defendant's operation, otherwise would have given up playing music-Portion of net profit attributed to music, recommended as award of profit, 18 times licence fee in each year, or $48,721.50-Pre-judgment interest awarded at prime business rates for each year-Interest on profit awarded at same rates, but only from end of year when profit, loss determined-Punitive damages of $5,000 awarded since refusal to pay licence fees wilful, flagrant, and as deterrent to those who use others' music without payment-Copyright Act, R.S.C., 1985, c. C-42, ss. 34(1.01) (as enacted by S.C. 1994, c. 47, s. 62), 35(1).