This case concerned a dispute over the unauthorised copying of files forming part of computer software known as a website content management system (CMS).

The applicants alleged that a former employee, Mr Petro, infringed copyright in the source code of the company’s CMS. They submitted that Mr Petro copied the table file and editor file (JavaScript files) from a website created for a Dais client, HR Advantage, for use in other commercial websites. The applicants also claimed breach of confidence and contract, and contravention of the Corporations Act.

The claim against Bullet Creative Pty Ltd, which engaged Mr Petro, was settled at the commencement of proceedings.

Justice Jessup agreed with the parties that the CMS source code was a “computer program” under the Copyright Act. His Honour found that the JavaScript files also satisfied the section 10 definition of “computer program”, being “a set of instructions used in a computer to bring about a certain result”.

The case turned on the question of whether Mr Petro had reproduced the table file and/or the editor file from a particular version of Dais’ CMS, developed during a project for HR Advantage.

His Honour found that Mr Petro had not reproduced the JavaScript files from the HR Advantage website, but nonetheless went on to consider whether or not, if he had found any actual copying, the JavaScript files were a “substantial part” of the CMS source code. His Honour concluded that they were not.

Although the files were, in a functional sense, integral to the CMS, his Honour was not presented with any argued case to establish that “a degree of skill, labour and judgment ha[d] given the table file and the editor file an originality which made them a qualitatively substantial part” of the CMS. Further, a quantitative analysis showed that the file source code constituted a very small percentage of the total lines of code in the CMS.

The application was dismissed.

Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2007] FCA 2054 (20 December 2007)

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The Federal Court of Australia has decided an appeal in a dispute between two sellers of photo box albums. The Court denied the appeal against the unsuccessful claim of copyright infringement but allowed the appeal based on contraventions of the Trade Practices Act.

The appellant argued that the respondent and its director infringed copyright in an “artistic work” being a “drawing” on the side of the packaging of the photo box album. The Court observed that the image on the packaging consisted of text fulfilling a semiotic function and a photograph, which, either separately or combined, were not drawings for the purposes of copyright subsistence. The Court refused to allow an amendment of the claim to infringement in a “compilation” because it lacked merit in this case; a compilation involves collecting, arranging or organising disparate data.

On the trade practices claim, the Court held that a substantial number of consumers of photo boxes in the relevant market would be likely to think from the design of the respondents’ packaging that the respondents had an affiliation with the appellant that they did not have. Damages and interest were awarded against the respondents.

Woodtree Pty Ltd v Zheng & Anor [2007] FCA 1922 (7 December 2007)

To view the vase, click here

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On 10 July 2007, the Copyright Tribunal of Australia published its reasons

for concluding that a scheme proposed by the Phonographic Performance

Company of Australia (PPCA) in relation to licences for the use of sound

recordings in nightclubs would be confirmed subject to the adjustment of the

licence fee proposed and the amendment of certain definitions.

PPCA, representing rights holders of recorded music and music videos, was

directed at that time to draft short minutes to give effect to the

Tribunal’s conclusions. However, the nightclub respondents disputed the way

PPCA’s draft short minutes dealt with the phasing in of the new licence fees

for nightclubs.

The Tribunal concluded that the scheme proposed by the Society should be

confirmed subject to changes of the definitions referred to in its earlier

reasons and subject to the substitution of licence fees for nightclubs as

follows: that the applicable fee in Year 1 would be $0.51 per patron, rising

each year over five years to $1.05 per patron in Year 5.

Phonographic Performance Company of Australia Limited under section 154(1)

of the Copyright Act 1968

To view the case, click here.

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The Federal Court has found that Graphix Labels Pty Ltd infringed copyright in artwork supplied by its customer, Futuretronics.com.au Pty Ltd.

Graphix was contracted by Futuretronics to reproduce the artwork on covers or “skins” for mobile phones, iPods, handheld games and electronic game controllers that it was manufacturing for Futuretronics.

At a later date, Graphix decided that it would start manufacturing its own "skins", using artworks supplied to it from other sources. However, a brochure it produced to promote its products included the artworks supplied by Futuretronics, for illustrative purposes only.

In addition to infringement of copyright, the Court found that by supplying brochures and spare copies of skins bearing copies of the artwork to its customers and potential customers, Graphix breached an implied licence term that it would only use the artwork for purposes authorised by Futuretronics.

A claim for breach of copyright in respect of the manufacturing materials was abandoned. Claims for breach of the Trade Practices Act by Graphix and for breach of fiduciary duty against an employee of Futuretronics were unsuccessful.

Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd [2007] FCA 1621

(29 October 2007)

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The High Court of England and Wales held that a cartoon based on a cartoon lion that had been used by the Football Association in 1966 did not infringe copyright since, although there was actual copying, the later work did not reproduce a substantial part of the original.

The issue arose in the context of a dispute over an application by Jules Rimet Cup Ltd (JRCL) to register the later work as a trademark: the court held that JRCL had applied to register the trade marks in bad faith.

Jules Rimet Cup Ltd v The Football Association Ltd [2007] EWHC 2376 (Ch) (18 October 2007)

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The Federal Court has decided a dispute between two project home builders about the copying of architectural plans. The applicants contended that the respondents infringed copyright by copying the applicants’ house plans. The plans included an “alfresco quadrant” comprising a kitchen, meal area, rumpus room and outdoor area under a single roof line.

The Court found that the house plans satisfied the originality requirement for copyright protection. The plans were considered to be different from common place architectural designs in the project home market, particularly with regard to the “alfresco quadrant”. The Court found that what was copied was both qualitatively and quantitatively a substantial part of the applicants’ plans. The objective similarities between the applicants’ plans and a prototype used to derive the respondents’ plans were found to be indicative of copying. Justice Gilmour relied on expert evidence and impressions from his own observations of the buildings in reaching his decision in favour of the applicants.

The managing director of the corporate respondent, who had knowledge that house designs were derived from the applicants’ plans and had power to prevent such copying from occurring, was found to have authorised copyright infringement. The Court found that the product development manager of the corporate respondent, having direction and control over the designer who copied the applicants’ plans, was also personally liable for authorising infringement.

Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd [2007] FCA 1509 (28

September 2007)

To view the case, click here.

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