In this case, Telstra alleged that National Rugby League match footage was subject to an exclusive license to Telstra and that copyright was infringed by the licensor when communicating footage on the Fox Sports website and authorising communication via the Hutchison and Vodafone mobile telephone services. The Court considered whether, on the balance of convenience, an interlocutory injunction should be granted to restrain the alleged infringing use of the footage and whether the communication, or authorisation of communication, of the footage was a “fair dealing”.

Justice Allsop decided that Telstra did not make out that it had a prime facie case. In considering whether the requirements of the fair dealing exception for reporting the news might be met in the circumstances, His Honour stated that it was arguable that the use of 45 seconds of 90 minutes of footage of a match was not a fair dealing for the purposes of reporting the news under Australian copyright law. Considering the rights negotiations that had taken place between Telstra and the Australian Football League, His Honour was not persuaded that there was a case to distinguish between use on the internet and telephone services, and use on free-to-air and pay television.

Telstra Corporation Pty Limited v Premier Media Group Pty Limited and News Digital Media Pty Limited [2007] FCA 568 (18 April 2007)

To view the case. click here.

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In a decision delivered on 5 June 2007, the Full Court of the Federal Court rejected a claim by the NSW government that it owns copyright in surveyors’ plans registered with it. The government argued that it owned copyright because the plans were made under its direction or control (under s 176 of the Copyright Act) and/or because the plans were first published by it (under s177). The court held that the plans were not made under the direction or control of the government merely because the plans complied with stringent statutory requirements. The court also held that the plans were first published when supplied by the surveryors to their clients, and therefore were not first published by the government.

The court held that the government’s use and supply of the plans was covered by s183 (use for the services of the government), but that the government had an implied licence from the surveyors to use and supply the plans, including for a fee. This meant that the government was not obliged to pay for its use of the plans.

Although not necessary to its judgment, the court went on to hold that the entry of data from one of the plans into a database known as the Digital Cadastral Database did not reproduce the plan.

The case was a reference to the Federal Court on issues of law by the Copyright Tribunal. Copyright Agency Limited, whose members include surveyors, had made an application to the Tribunal for a determination under ss183 and 183A of the Copyright Act.

Copyright Agency Limited v State of NSW [2007] FCAC 80

For the decision, click here.

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In response to an application by the Phonographic Performance Company of Australia (PPCA) on behalf of its member artists and record labels, today the Copyright Tribunal is reported to have ordered an increase to the licence fees payable by nightclub venues and commercially organised dance party operators. The rate for licensed sound recordings played in nightclubs will be raised from $0.07 per person to $1.05 per person and from $0.20 to $3.05 per person for dance parties.

To view the case, click here.

For information about the Copyright Tribunal, click here.

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This is a decision of the Federal Court of Australia by Justice Greenwood, which was handed down on 18 May 2007.

In this case, the applicant claimed that the respondent had infringed copyright in drawings of parts of an assembled industrial bucket that was used with a machine commonly called a “Bobcat”.

The judgment gives details of the background to the action, of the applicant’s case (including of the evolution of the relevant drawings) and of the respondent’s contentions. The issues considered by the Court were: originality, conscious use and copying, reproduction of drawings (especially the respondent’s use of a three-dimensional article to produce drawings), the relationship between an artistic work and a corresponding design both in terms of the pre 17 June 2004 position and the position after that date, and damages.

The Court found that there had been copyright infringement. Total damages of $61,223 were awarded for infringement, and there was an award of additional damages of $19,450. Declarations, an injunction, and an order for delivery up, were also made.

Norm Engineering v Digga Australia [2007] FCA 761 (18 May 2007)

The decision is available from here

A subsequent decision on costs and interest on damages is available from http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/953.html

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On 26 April 2007, the High Court agreed unanimously to overturn the decision of the Full Court of the Federal Court of Australia which had upheld the decision of Carr J to allow an interlocutory injunction against the appellants who were involved in a rival business.

The Court determined that the Plug (a scale model of the hull and decks) forming part of a naval architect’s boat design did not satisfy the definition of “work of artistic craftsmanship” in s 10 of the Copyright Act 1968 because its design was constrained by functional considerations. Furthermore, the derivative hull and deck mouldings were manifestations of the Plug such that they were not created by an artist-craftsman as independent “works of artistic craftsmanship” that might otherwise have had copyright protection under s 77(1) of the Copyright Act, whether industrially applied or not, and where a corresponding design had not been registered under the Designs Act 1906 (since replaced by the Designs Act 2003). The appeal was allowed with costs.

The judgement notes that it is consistent with, but no dictated by, the amendment made to s 10 of the Copyright Act by the Designs Act 2003, which clarified that a “work” can be both an “artistic work” and a “work of artistic craftsmanship”. The effect is that, under s 77 of the Copyright Act, copyright will continue to subsist in “artistic works” when they are industrially applied if they are also “works of artistic craftsmanship” and have not been registered as designs under the Designs Act.

Click here for the case.

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In this case, the High Court held that the appellant, the purchaser of a building site, had an implied licence to use architectural plans developed for the site by the one of the respondents. The High Court thus allowed the appeal from the decision of the Full Court of the Federal Court, and restored the decision of Conti J at first instance.

The dispute in the case arose from a joint venture for the purchase of a property for home unit development, which subsequently broke down, resulting in sale of the land to the applicant. The respondent was one of the parties to the joint venture.

The High Court held (inter alia) that the joint venture was critical and possessed fiduciary characteristics. If the respondent were allowed to assert copyright in the plans, and prevent the use of the plans for the site, it could pursue its own interests contrary to the purposes of the joint venture. If an architect is an owner of land and prepares plans in respect of that land without charging a fee, the architect implicitly consents to the use of the plans in relation to the land, unless an agreement or term provides to the contrary. The implied licence to use the architectural plans in favour of the owners of the land extends to subsequent purchasers of that land and, in the absence of a reservation of copyright in the plans, is irrevocable. Given its consent to the sale of land, it was not open to the architect to derogate from the grant of an implied licence by asserting copyright in the plans.

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