Case: Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415
Outcome: considered
What is clear from Clarendon Homes v Henley Arch, and Tamawood v Henley Arch in particular , as well as the other cases cited, is that in order to prove infringement of copyright there must be proof of copying. As indicated, copying can be deliberate or subconscious although, as the Full Court observed in Clarendon Homes v Henley Arch at [24], in cases involving works such as architectural plans, it would be surprising to find many cases of subconscious copying. If a person independently creates a work that is substantially similar or even identical to another in which copyright subsists, the copyright holder has no recourse: Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [86] per Lindgren J. 72 A "substantial part" can be constituted by the arrangement of rooms in a design, as well as by matters such as traffic flow throughout a house: Eagle Homes v Austec Homes . Although questions of "substantiality" and "reproduction" are ultimately for the Court to determine, it is permissible and of assistance to have regard to expert opinion to resolve those questions: Ancher, Mortlock, Murray &amp; Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 at 286 and Barrett Property Group v Metricon Homes at [28]. 99 Boutique submitted that many of these features were either mere ideas or common to all project homes. It will be recalled that in Tamawood v Henley Arch, the Court observed (at [38]) that the application of the law of copyright to project home plans gave rise to special difficulty. All modern homes had certain features in common and, in the case of project homes competing for the "same number of dollars", there were pressures towards sameness. See also Eagle Homes v Austec Homes at [80] per Lindgren J . In Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443 , Merkel J (at 460) went so far as to suggest that the degree of the protection under copyright of an architectural plan might be limited by reason of the proportion of features common to all plans. 112 It argued that it was relevant, when determining whether there was sufficient objective similarity to justify a finding of reproduction of a substantial part, to consider whether there had been actual and deliberate copying. In Eagle Homes v Austec Homes, Lindgren J pointed out the importance in that case of the primary judge's finding that there had been subjective copying. His Honour said (at [92]): "To insist that a copyright owner can satisfy the sufficient objective similarity of reproduction only by establishing such a close similarity is a hurdle too high to be placed before a copyright owner who is found to have proved subjective copying. The way of the copier, including the copier of a plan of a project home, should not be made easy." 113 Boutique submitted that it was in the light of findings of deliberate copying that both Eagle Homes v Austec Homes and Barrett Property Group v Metricon Homes (affirmed on appeal: Metricon Homes Pty Ltd v Barrett Property Group Pty Ltd [2008] FCAFC 46) should be viewed. In a case involving at its highest an allegation of subconscious reproduction, a close objective similarity in the detail of the two plans should be required before there could be any finding that a substantial part had been taken. 116 Inform contended that the authorities were careful to point out that the conceptual limits of project home copyright should not be overstated: Eagle Homes v Austec Homes ; LED v Eagle Homes and Clarendon Homes v Henley Arch, Tamawood v Henley Arch and Barrett Property Group v Metricon Homes . It noted that copyright protection had been given to the combination and arrangement of rooms and spaces in a design and the "flow" or movement and other aspects arising from that arrangement and associated design choices (eg Eagle Homes v Austec Homes).