section had not been enacted and the action have been brought by the owner of the copyright, shall be available to that defendant as against the exclusive licensee.
(5) Where an action is brought in the circumstances mentioned in subsection (3) and the owner of the copyright and the exclusive licensee are not plaintiffs in the action, the court, in assessing damages in respect of any infringement as is mentioned in that subsection—
| (a) | if the plaintiff is the exclusive licensee, shall take into account any liabilities (in respect of royalties or otherwise) to which the licence is subject; and | |
| (b) | whether the plaintiff is the owner of the copyright or the exclusive licensee, shall take into account any pecuniary remedy awarded to the other party under section 37 in respect of that infringement, or, as the case may require, any right of action exercisable to the other party under that section in respect thereof. |
(6) Where an action, in so far as it is brought under section 37, relates (wholly or partly) to an infringement in respect of which the owner of the copyright and the exclusive licensee have concurrent rights of action under that section, and in that section (whether they are both parties to it or not) an account of profits is directed to be taken in respect of that infringement, then subject to any agreement of which the court is aware whereby the application of those profits is determined as between the owner of the copyright and the exclusive licensee, the court shall apportion the profits between them as the court may consider just and shall give such directions as the court may consider appropriate for giving effect to the apportionment.
(7) In an action brought either by the owner of the copyright or by the exclusive licensee—
| (a) | no judgement or order for the payment of damages in respect of an infringement of copyright shall be given or made under section 37, if a final judgement or order has been given or |
