Intelmail Explorenet Pty Ltd and Heros Dilanchian v Avo Vardanian and Controlmech Pty Ltd (No 2) 23/09/2009

This case concerned ownership of copyright in software.

 

The issue was whether Intelmail Explorenet (the first applicant) owned copyright in software written by Vardanian (the first respondent) or, in the alternative, it had an implied licence to use the works for the purpose of the ongoing conduct of the business.

 

The respondents accepted that Intelmail Explorenet was a licensee but disputed the terms of the licence propounded by the applicants.

 

Moore J construed the implied terms of the (non-express) employment agreements. In doing so, the judge considered the nature of the relationship between the first respondent and the second applicant, their strong cultural ties, and the fact that the first respondent had contributed significantly to the second applicant’s business.

 

Moore J found that in those circumstances, it was unlikely that either party would have agreed to an arrangement that would have put at risk the prosperity of the business. It was held that:

 

  • a term should be implied into the first agreement (entered into at the point when the first respondent ceased to be an employee of Intelmail Australia) that Intelmail Australia would retain the equitable ownership of copyright in any programs written by the first respondent from the time he ceased to be an employee, this term being necessary for the “reasonable and effective” operation of the contract; and

  • there was no basis for the proposition that the term in that agreement would have changed at the point that a second contract arose.

 

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Intelmail Explorenet Pty Ltd and Heros Dilanchian v Avo Vardanian and Controlmech Pty Ltd (No 2) [2009] FCA 1018

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Appeal dismissed: University of Western Australia v Gray 09/09/2009

This case is an appeal from a single judge of the Federal Court.

 

The proceeding concerned inventions by the respondent, Dr Gray, a professor of surgery at the University of Western Australia (UWA). UWA claimed that by reason of his employment, it had rights over the inventions and associated patents. The claim was dismissed at first instance.

 

After considering the terms of Dr Gray’s employment and employment contract, together with aspects of UWA's administrative systems, the Full Federal Court held that Dr Gray had no “duty to invent”. UWA did not therefore have an interest in the inventions as a result of the fact that Dr Gray was employed by it.

 

Further, the Full Court held that Dr Gray was under no independent fiduciary obligation, as an employee, to be accountable to UWA for the inventions.

 

The appeal by UWA was dismissed.

 

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University of Western Australia v Gray [2009] FCAFC 116

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Government 2.0 Taskforce seeks responses to Issues Paper 17/08/2009

The Government 2.0 Taskforce is seeking responses to its Issues Paper “Towards Government 2.0” by 24 August 2009.

 

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Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited 04/08/2009

The Federal Court has handed down an interim decision in a case brought by Larrikin Music Publishing Pty Ltd (’Larrikin’) against the composers of the song “Down Under” and the owner and licensee of “Down Under” (EMI); Larrikin allege that the composers and EMI infringed its copyright in the song “Kookaburra sits in the Old Gum Tree”.

 

The composers and EMI argued that Larrikin did not own the relevant parts of the copyright in the song, which had been created by a Ms Sinclair, and entered into a competition held by the Girls Guides Association of Victoria (’Victorian Girl Guides’). The question for the Court was to determine whether entry into the competition constituted assignment of copyright to the Victorian Girl Guides under the 1912 Copyright Act and whether subsequent assignment of copyright to Larrikin was effective.

 

The Court held that:

 

  • the evidence presented to the Court did not demonstrate that written assignment of copyright had occurred when Ms Sinclair entered the competition;

  • by signing and initialling the pages of the competition entry, Ms Sinclair was merely trying to identify the work and was not assigning the copyright to the Victorian Girl Guides;

  • no intention to assign could be demonstrated by the actions of either Ms Sinclair or the Victorian Girl Guides;

  • the competition rule that “all matter entered to become the property” of the Victorian Girl Guides did not reveal an intention to effect assignment of copyright; and

  • the chain of title was clearly documented and Kookaburra has properly been assigned to Larrikin.

 

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Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2009] FCA 799

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Keshi Pty Ltd v Firefly Press (Australia) Pty Ltd 29/07/2009

Keshi alleged that Firefly had infringed copyright in certain teaching aids.

 

This decision, however, relates only to procedural aspects of the case, which later settled.

 

 

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Keshi Pty Ltd v Firefly Press (Australia) Pty Ltd [2008] FCA 440 (2 April 2008)

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Rutter v Brookland Valley Estate 11/07/2009

The Federal Court has held that wine producer Brookland Valley Estate infringed copyright by using part of a musical work by flautist Jane Rutter on wine labels beyond the period for which it was licensed to do so.

 

The court noted that the bars of music used on the label was a substantial part of the original work because it was “essential to the concept, and its execution, that the music be authentic, original and associated with a high profile classical musician”: at [39].

 

The court used the initial agreement as the basis for its calculations for compensatory damages and awarded additional damages on the basis that the conduct of Brookland Valley was “unsatisfactory” and involved a “flagrant disregard of Ms Rutter’s rights”: at [112]. The court allowed interest on the award of compensatory damages but declined to award interest on the award of the punitive additional damages: at [118].

 

The court also found Brookland Valley had infringed Ms Rutter’s moral right of attribution but declined to award any further damages on this basis: at [114]-[115].

 

Rutter v Brookland Valley Estate Pty Limited [2009] FCA 702

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