Barrett contended that Metricon Homes infringed copyright by copying its house plans. These plans included an “alfresco quadrant” comprising a kitchen, meal area, rumpus room and outdoor area under a single roof line.

At first instance, the court found that what was copied was both qualitatively and quantitatively a substantial part of the Barrett Property Group’s plans, and that the objective similarities between those plans and a prototype used to derive Metricon Homes’ plans were indicative of copying.

The managing director of Metricon Homes, who had knowledge that house designs were derived from the Barrett Property Group’s 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 Metricon Homes, having direction and control over the designer who copied the plans, was also personally liable for authorising infringement.

The decision was confirmed on appeal to the Full Federal Court.

Metricon Homes Pty Ltd v Barrett Property Group Pty Ltd [2008] FCAFC 46 (1 April 2008)

More:

• Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd [2008] FCA 375 (20 March 2008): another first instance decision, in which Barrett was similarly successful

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This case involved designs on T-shirts and on swing tags, comprised of both words and numbers.

In each case, the relevant works were found to be artistic, not literary, works, as the function of the words and numbers was visual, not semiotic. Infringement was not, however, made out, as the rival company had merely copied the overall design shape and layout – these were ideas and not a “substantial part” of the drawings.

Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCA 447 (7 April 2008)

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At first instance, the Federal Court rejected a claim by Channel Nine that its TV program schedules were infringed by IceTV’s electronic program guide “the IceGuide”. While the court held that Nine’s Weekly Schedule was protected as a compilation, and that “Aggregated Guides”, which included the Weekly Schedule, were also protected, the court found that IceTV had not copied a substantial part of the Weekly Schedule. Rather, the judge at first instance found that IceTV ascertained information by independent inquiry, and its selection, arrangement and expression of information differed from that in the Weekly Schedule.

This decision was, however, reversed on appeal, with the Full Federal Court finding that, in context, the material that had been indirectly copied was “substantial”.

On 26 August 2008, the High Court granted IceTV special leave to appeal the Full Court's decision.

Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71 (8 May 2008)

More:

• Nine Network v IceTV [2007] FCA 1172 (9 August 2007): decision at first instance

• Nine Network v IceTV [2008] FCA 925 (27 June 2008): Bennett J's orders following the Full Court decision

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The Federal Court found that a truck body manufacturer infringed copyright by indirectly copying engineering drawings of a competitor’s “load constraint system” for cargo. The manufacturer had indirect access to the drawings through disclosures made, in breach of confidence, by a potential client found liable for authorising infringement.

A further claim that copyright in preliminary sketches had also been infringed was dismissed on the basis that the form in which the relevant drawings were expressed differed significantly.

Krueger Transport Equipment Pty Ltd v Glen Cameron Storage & Distribution Pty Ltd [2008] FCA 803 (30 May 2008)

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This decision relates to damages payable in relation to breach of an implied term in a contract and infringement of copyright in artworks for iPods (referred to in the judgment as “skins”).

A nominal award of $10 was made in relation to the breach of contract, while another nominal award of only $10 was made by way of compensatory damages for the infringement of copyright. More substantial damages of $10,000 were, however, awarded by way of additional or aggravated damages because the second defendant (who had previously been employed by the applicant) either knew or was wilfully blind to the fact that he should not have used the designs created by his former colleague from the applicant company.

The judge noted that other matters submitted by the applicants as relevant to an award of additional damages were really, in this case, relevant only to costs.

Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd (No 2) [2008] FCA 746 (27 May 2008)

More:

• Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd [2007] FCA 1621 (29 October 2007): decision on liability

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The University of Western Australia failed in a claim that intellectual property developed by an academic staff member was owned by the University and that the employee’s interest in a company commercializing the IP was held on trust for the university.

The court found that the assumption by the university that there was an implied term that it owned intellectual property was not well founded; the university was not authorised by its enabling Act to make regulations which purported to vest ownership of all intellectual property developed by its academic staff in the university; and there was no express agreement with the academic to negate the general position under the Patents Act 1990 (Cth) that inventions belong to an inventor unless there is a contractual obligation to produce inventions, separate from a duty to research.

While the case relates to a patented invention, from a copyright point of view the case is of interest in that it looks closely at the way the university sought to acquire ownership of intellectual property rights in material created by a staff member, and discusses how the general presumption that an employer owns rights in works by employees operates in the context of teaching and research staff.

The University of Western Australia is appealing the decision.

University of Western Australia v Gray (No 20) [2008] FCA 498 (17 April 2008)

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