Who pays the cost of copying?

The manner of calculating an account of profits by reason of copyright infringement was considered by Heerey J in Tenderwatch Pty Ltd v Reed Business Information Pty Ltd [2008] FCA 931.

On the question of what proportion of the profits made were attributable to the infringement, his Honour considered that the use made of the infringing work was so fundamental to the activities of the infringer that the whole of the profit should be so attributable.

On the question of whether the infringer was entitled to deduct from the gross profits, an amount based on his time spent in preparing the infringing work his Honour considered that such a deduction would be wrong in principle, stating that “This would be tantamount to making a copyright owner pay an infringer for the time and effort spent in infringement.” The cost of printing the infringing works was however held to be properly deductible.