The Full Court of the Federal Court has dismissed an appeal against a decision of a single judge that Technicon Industries infringed Caroma’s design and copyright rights when it designed and manufactured a competing lavatory pan.
Technicon Industries Pty Ltd v Caroma Industries Ltd [2009] FCAFC 76
On 22 April 2009, the High Court allowed the appeal in IceTV v Nine Network.
The case arose from a claim by Channel Nine that its television program schedules (Weekly Schedules) were infringed by IceTV’s electronic program guides (IceGuides). IceTV accepted that copyright subsisted in each Weekly Schedule as an original literary work but denied that it had reproduced a substantial part and denied that its use of information from "Aggregated Guides" (publicly available television programme guides that include information from the Weekly Schedules) infringed copyright in the Weekly Schedules.
The primary judge and the Full Federal Court identified the “skill and labour” expended in creating the Weekly Schedules and considered whether IceTV had appropriated that skill and labour. The primary judge concluded that the “slivers” used by IceTV did not constitute reproduction of a substantial part. On appeal, the Full Court found in favour of Nine Network.
The High Court held that any reproduction of the time and title information in the IceGuides was not a reproduction of a substantial part of any of Nine’s Weekly Schedules (or the Nine database).
French CJ, Crennan and Kiefel JJ held that Nine’s employees’ skill and labour in making programming decisions was not geared towards the originality of the particular form of expression of the time and title information.
In a separate judgement, Gummow, Hayne and Heydon JJ held that the Full Court had approached the issue of substantiality at too high a level of abstraction, and that the primary judge had approached the issue correctly when she stressed that the lengthy preparatory work involved was directed to the conduct of the business of Nine in broadcasting programmes which would attract viewers. They emphasised the dangers, when applying the Copyright Act, of adopting the rhetoric of “appropriation” of “skill and labour”; a finding that one party has “appropriated” skill and labour, of itself, is not determinative of infringement.
Because IceTV had accepted that copyright subsisted in the Weekly Guides, their Honours declined to make any findings about the requirements for originality in copyright works, but said that there was a "need to treat with some caution the emphasis in Desktop Marketing upon 'labour and expense' per se and upon misappropriation".
IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14
This was an appeal from the decision in Racing & Wagering Western Australia (RWWA) v Software AG (SAG) Australia Pty Ltd [2007] FCA 1345.
The appeal concerned the interpretation of a software licence agreement and the interpretation of section 47F of the Copyright Act 1968 (Cth).
The Court:
confirmed that RWWA was not breaching its software licence agreement with SAG by copying and testing mainframe computer system software at a disaster recovery site (DR Site) maintained by a third party. It held this on the grounds that Software AG (Australia) Pty Ltd (SAG)'s construction of the phrase "for emergency restart purposes" would result in a meaning that would be unreasonable or inconvenient.
held that the declaration made by the primary judge that "[RWWA] is entitled to test the disaster recovery copy pursuant to the terms of the Licence Agreement and in any event pursuant to section 47F of the Copyright Act 1968..." be varied by deleting the words "and in any event pursuant to s 47F of the Copyright Act 1968". It stated that testing security within the meaning of section 47 should be confined to testing the original to ascertain its security from unauthorised access or other invasion. It rejected RWWA'S contention, which had been adopted by the primary judge, that testing the security of the original copy extends to what was done at the DR Site, namely testing of the DR Copy to ensure that the System would be capable of being restarted without the loss of data.
The appeal was dismissed.
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This case concerns infringement of copyright in Autodesk software, including a tool for two and three dimensional design and drafting used by architects and engineers in Australia. An audit conducted in 2007 confirmed the unlicensed reproduction of Autodesk software by the first respondent (Ginos Engineers) in contravention of section 36 of the Copyright Act. These proceedings concern the following issues: first, Mr Ginos’ alleged liability for infringement of copyright in the software; second, the quantum of Autodesk’s compensatory damages; and third, whether any additional damages were payable.
In relation to the question of liability, it was submitted by the applicants that Mr Ginos’ liability arises as a director of Ginos Engineering. The court found that Mr Ginos gave evidence to the effect that he oversaw and approved all major purchases made for the practice and thus was liable for infringing Autodesk’s copyright.
In relation to the question of compensatory damages, it was submitted by the applicants that they were owed what they might otherwise have fairly charged the first respondent had proper licences been obtained. The court was satisfied that the proper measure of damages was the retail price that would have been paid were licences obtained and did not accept the respondents’ argument that they were entitled to a discounted rate. It found that compensatory damages amounted to $38,012.22.
In relation to additional damages, the applicants submitted that the first respondent took a deliberate and flagrant course of conduct by making the infringing copies and using them for its business, justifying an award of damages under section 115(4)(b)(i) of the Act. It was also submitted that the respondents deliberately removed several relevant computers from their premises in order to mask the extent of their infringing activities. The Court rejected the respondents’ claim that the infringement was innocent and accepted that they carried out their activities with the intention of obtaining financial benefit. $76,000 was awarded in additional damages.
Autodesk Inc & Ors v Ginos Engineers Pty Ltd & Anor [2009] FMCA 14
Cotton On Clothing Pty Ltd (Cotton On) released a series of T-shirts with artwork similar to artwork on a T-shirt produced by Elwood Clothing Pty Ltd (Elwood). Cotton On’s swing tag labels were also similar to those used by Elwood. The evidence at trial was that the employees of Cotton On had been told to use the Elwood T-shirt and swing tag as reference points to design something that had “the same look and feel, but different”.
The trial judge found that Cotton On’s designs did not infringe copyright, as the similarities were only at the conceptual level. However, on appeal, the Full Federal Court unanimously overturned this decision, finding that what had been copied was indeed a substantial part of the designs on Elwood’s T-shirt and swing tag.
The appeal court affirmed the trial judge’s conclusion that the designs were, for copyright purposes “artistic works” rather than “literary works”: while the designs incorporated words and numbers, these did not have “a ‘semiotic’ meaning (ie were to be read as a text)” but “rather a ‘visual look and feel’ (ie were to be understood as a design)“.
In addition to a declaration that Cotton On had infringed copyright, the appeal court issued an injunction restraining Cotton On from infringing Elwood’s copyright in future and an order for ‘delivery up’. The proceeding was remitted to the trial judge for determination of damages.
Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197
The UK Design and Artists Copyright Society (DACS) reports that the UK government has decided to delay the implementation of the artists’ resale right scheme for artists’ heirs and beneficiaries. DACS claims that the decision rejects a socially just policy without justification and is a betrayal of artists.
The scheme in place in the UK since 2006 has paid £7.5 million in royalties on the sale of works to 1,500 living artists. Under EU rules, the government had until the end of 2008 to decide whether to implement the right for artists’ heirs and beneficiaries to receive royalties from 2010 or to delay that for a further two years until 2012.
DACS states that the government’s decision ignores 90% of respondents to the government consultation who favoured the implementation of the right without delay, that it runs contrary to the government’s proclaimed “fairness” agenda, and that it disregards evidence that the right does not damage business.
Joanna Cave, chief executive of DACS, is quoted as saying, “I am devastated for all the artists and their families who believed the Government’s empty words about championing the arts. This irrational decision is a betrayal of the artist community and a rejection of the mountain of evidence.”
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UK Design and Copyright Society (DACS)