Commercial Court Division as damages an amount equivalent to the fair fee or royalty which he would have to pay for licence to do the acts, which he has done and damages may be said to be at large.” It is therefore not only the money acquired from the caller tune fee by the Defendant that should be considered but also the depreciation in value of the song. Just as PW2 testified if every time a person uses his phone he hears the same caller tune he is not likely to go to a shop and buy a recording of that music. The caller tune project might popularize a song without increasing the song’s sale on the market. The song even in its popularity does not benefit copyright holder, in this case the Plaintiff, because while the song is being heard many times, no CD is leaving the shops. Similarly, while no CD is leaving the shops, the song is depreciating. In the instant case however, Counsel for the Plaintiff did not assist Court much in assessing how much depreciation of the songs had taken place. This Court however cannot sit and fold its hands in resignation. Where the Plaintiff cannot prove actual damage the correct measure of damages is what the Plaintiff would have charged for the use of his or her property by the Defendant. The Plaintiff can only recover the actual loss suffered which is proved on the balance of probabilities. Wrotham Park Estate Company V Parkside Homes Ltd [1974] 2 All ER 321. The big question is thus: How much? Discussing the cost of a song, PW2 during cross-examination listed the avenues to which money is spent to produce a song. She said HCT - 00 - CC - CS - 373- 2010 /6