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Tiny Intelligence Ltd v Resport Ltd

(2009 NZSC 35, 8th April 2009)

At issue was whether an injured party, who elects an account of profits under section 120(2), can also claim for additional damages under section 121(2) of the Copyright Act 1994 (NZ). In the proceedings, the appellant had obtained judgment for liability against Resport Ltd, the respondent, for infringement of copyright in artistic works, being designs for a toy sword and a toy trumpet. The High Court had granted a permanent injunction and ordered delivery up of the infringing copies and the means for their production. In a separate hearing on monetary relief, the appellant elected an account of profits but also sought an award of ‘additional damages’ under section 121(2) of the Copyright Act. In the High Court, John Hansen J determined that additional damages could not be awarded when an account of profit was elected. That decision was upheld in the Court of Appeal.

The Supreme Court held as follows:

(i) Sections 120 and 121 do not depart from the long-standing principle that damages and an account of profits cannot be obtained for the same wrongful act. The two are alternative remedies. The word "damages" in two interrelated sections do not have different meanings under sections 120 and 121. The disentitlement to damages against innocent infringers under section 121(1) clearly relates to those damages that might otherwise have been awarded under section 120(2). The heading of section 121 indicates that section 121(2) is a provision as to damages and the term ‘additional damages’, in its ordinary meaning, conveys a sense of further or more damages. It does not identify an independent form of relief different from damages.

(ii) A review of legislative history and domestic and foreign cases under sections 120 and 121 and their predecessors, affirmed that ‘additional damages’ are additional to, or an enhancement on, damages awarded under section 120 of the Copyright Act.