mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd (1990) 1 Qd.R 231
Outcome: cited
Ultimately, the question to be determined on the issue of originality is one of fact and degree in every case ( G.A. Cramp &amp; Sons Limited v Frank Smythson Limited [1944] A.C. 329 at 335) as to whether the author of each work has deployed a sufficient level of skill, work, labour, care, concentration, analysis or effort so as to bring into existence a work in which copyright subsists ( Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 at 476477; Sands &amp; McDougall Pty Ltd v Robinson [1917] HCA 14 ; (1917) 23 CLR 49; University of London Press v University Tutorial Press [1916] 2 Ch 610; Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd (1990) 1 Qd.R 231; Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd [1999] FCA 1371 per Heerey, Sundberg and Finkelstein JJ), whether or not the plans or drawings comprising the artistic works exhibit 'artistic quality' ( Amalgamated Mining Services Pty Ltd v Warman International Ltd (1992) 24 IPR 461; S W Hart &amp; Co. Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466). Originality in this sense means the work of an author not copied from another work ( Walter v Lane [1900] AC 539). When the plans in suit have a genetic footprint in earlier drawings to which the author has had regard, the degree of work, labour, skill, effort and judgment deployed in bringing the plans in suit into existence, must exhibit, as the expression of that effort, visually identifiable changes that make it plain that the drawing is a new artistic work and not simply a copy of the earlier drawings ( Interlego AG v Croner Trading Pty Ltd (1992) 111 ALR 577).
Case: Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd [1999] FCA 1371
Outcome: cited
Ultimately, the question to be determined on the issue of originality is one of fact and degree in every case ( G.A. Cramp &amp; Sons Limited v Frank Smythson Limited [1944] A.C. 329 at 335) as to whether the author of each work has deployed a sufficient level of skill, work, labour, care, concentration, analysis or effort so as to bring into existence a work in which copyright subsists ( Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 at 476477; Sands &amp; McDougall Pty Ltd v Robinson [1917] HCA 14 ; (1917) 23 CLR 49; University of London Press v University Tutorial Press [1916] 2 Ch 610; Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd (1990) 1 Qd.R 231; Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd [1999] FCA 1371 per Heerey, Sundberg and Finkelstein JJ), whether or not the plans or drawings comprising the artistic works exhibit 'artistic quality' ( Amalgamated Mining Services Pty Ltd v Warman International Ltd (1992) 24 IPR 461; S W Hart &amp; Co. Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466). Originality in this sense means the work of an author not copied from another work ( Walter v Lane [1900] AC 539). When the plans in suit have a genetic footprint in earlier drawings to which the author has had regard, the degree of work, labour, skill, effort and judgment deployed in bringing the plans in suit into existence, must exhibit, as the expression of that effort, visually identifiable changes that make it plain that the drawing is a new artistic work and not simply a copy of the earlier drawings ( Interlego AG v Croner Trading Pty Ltd (1992) 111 ALR 577). 182 Although I have found that the respondent made conscious use of the applicant's new 4 in 1 bucket and has consciously copied components of the bucket, the court must be satisfied that the respondent reproduced each of the applicant's drawings or a substantial part of them. The test of reproduction is whether there is a sufficient degree of objective similarity between the applicant's drawings and the respondent's drawings ( Francis Day &amp; Hunter Ltd v Bron [1963] Ch. 587 at p 614 per Wilmer LJ; S W Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 per Gibbs CJ; CIPEC v First Melbourne Securities Pty Ltd [1999] FCA 660 ; (1999) 44 IPR 512 [52] per Merkel J). The question of what amounts to substantial reproduction in any case is not capable of precise definition and is a matter of fact and degree ( Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 at p 473 per Lord Evershed). The question of reproduction is a separate question from causal use and causal copying although the two overlap ( Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd [1999] FCA 1371 per Heerey, Sundberg and Finkelstein JJ [27]).
Case: Walter v Lane [1900] AC 539
Outcome: cited
Ultimately, the question to be determined on the issue of originality is one of fact and degree in every case ( G.A. Cramp &amp; Sons Limited v Frank Smythson Limited [1944] A.C. 329 at 335) as to whether the author of each work has deployed a sufficient level of skill, work, labour, care, concentration, analysis or effort so as to bring into existence a work in which copyright subsists ( Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 at 476477; Sands &amp; McDougall Pty Ltd v Robinson [1917] HCA 14 ; (1917) 23 CLR 49; University of London Press v University Tutorial Press [1916] 2 Ch 610; Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd (1990) 1 Qd.R 231; Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd [1999] FCA 1371 per Heerey, Sundberg and Finkelstein JJ), whether or not the plans or drawings comprising the artistic works exhibit 'artistic quality' ( Amalgamated Mining Services Pty Ltd v Warman International Ltd (1992) 24 IPR 461; S W Hart &amp; Co. Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466). Originality in this sense means the work of an author not copied from another work ( Walter v Lane [1900] AC 539). When the plans in suit have a genetic footprint in earlier drawings to which the author has had regard, the degree of work, labour, skill, effort and judgment deployed in bringing the plans in suit into existence, must exhibit, as the expression of that effort, visually identifiable changes that make it plain that the drawing is a new artistic work and not simply a copy of the earlier drawings ( Interlego AG v Croner Trading Pty Ltd (1992) 111 ALR 577).
Case: Interlego AG v Croner Trading Pty Ltd (1992) 111 ALR 577
Outcome: cited
Ultimately, the question to be determined on the issue of originality is one of fact and degree in every case ( G.A. Cramp &amp; Sons Limited v Frank Smythson Limited [1944] A.C. 329 at 335) as to whether the author of each work has deployed a sufficient level of skill, work, labour, care, concentration, analysis or effort so as to bring into existence a work in which copyright subsists ( Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 at 476477; Sands &amp; McDougall Pty Ltd v Robinson [1917] HCA 14 ; (1917) 23 CLR 49; University of London Press v University Tutorial Press [1916] 2 Ch 610; Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd (1990) 1 Qd.R 231; Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd [1999] FCA 1371 per Heerey, Sundberg and Finkelstein JJ), whether or not the plans or drawings comprising the artistic works exhibit 'artistic quality' ( Amalgamated Mining Services Pty Ltd v Warman International Ltd (1992) 24 IPR 461; S W Hart &amp; Co. Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466). Originality in this sense means the work of an author not copied from another work ( Walter v Lane [1900] AC 539). When the plans in suit have a genetic footprint in earlier drawings to which the author has had regard, the degree of work, labour, skill, effort and judgment deployed in bringing the plans in suit into existence, must exhibit, as the expression of that effort, visually identifiable changes that make it plain that the drawing is a new artistic work and not simply a copy of the earlier drawings ( Interlego AG v Croner Trading Pty Ltd (1992) 111 ALR 577). 223 Consistent with long established principle, some aspect of visual appeal to the eye has been critical to a design. Although AMP Incorporated v Utilux Pty Limited (1971) FSR 572 suggested a shape 'chosen' solely to perform functional requirements of an article did not qualify as a design under the United Kingdom legislation, the Australian position from the outset (that is, enactment of the Designs Act 1906) has been that a design was not rendered invalid simply because a particular shape selected by the designer assisted a functional purpose ( Hosokawa Micron International Inc v Fortune (1990) 26 FCR 393 at p 429-430; Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at p 375). The Designs Act 1906 was amended by Act No. 42 of 1981 (perhaps as a result of the Utilux decision) to provide that a design would not be incapable of registration by reason that the features of shape serve only a functional purpose. Although qualification as a design has been discussed in the authorities in the context of registrability , qualification as a design depends simply on the definition of design, not the Designs Act's further requirements for registrability ( Greenfield Products Pty Ltd v Rover-Scott Bonnar Limited [1990] FCA 154 at p 25; (1990) 17 IPR 417 at 431-432). In other words, what are the features that inhere in a contended design and what is the role of the exclusion in the definition?
Case: Francis Day &amp; Hunter Ltd v Bron [1963] Ch. 587
Outcome: cited
Although I have found that the respondent made conscious use of the applicant's new 4 in 1 bucket and has consciously copied components of the bucket, the court must be satisfied that the respondent reproduced each of the applicant's drawings or a substantial part of them. The test of reproduction is whether there is a sufficient degree of objective similarity between the applicant's drawings and the respondent's drawings ( Francis Day &amp; Hunter Ltd v Bron [1963] Ch. 587 at p 614 per Wilmer LJ; S W Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 per Gibbs CJ; CIPEC v First Melbourne Securities Pty Ltd [1999] FCA 660 ; (1999) 44 IPR 512 [52] per Merkel J). The question of what amounts to substantial reproduction in any case is not capable of precise definition and is a matter of fact and degree ( Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 at p 473 per Lord Evershed). The question of reproduction is a separate question from causal use and causal copying although the two overlap ( Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd [1999] FCA 1371 per Heerey, Sundberg and Finkelstein JJ [27]).
Case: Henley Arch Pty Ltd v Clarendon Homes Pty Ltd (1998) 41 IPR 443
Outcome: cited
In CIPEC v First Melbourne Securities (supra), Merkel J [52] noted the principles governing copyright infringement in architectural plans, isolated by his Honour in Henley Arch Pty Ltd v Clarendon Homes Pty Ltd (1998) 41 IPR 443 at 460 and concluded that the same principles apply in determining infringement by reproduction of drawings for the manufacture of three-dimensional components of industrial manufacture (in that case, expansion joints). Those principles recognise that no reproduction arises where substantially similar works are produced through independent efforts; greater weight will be given to the quality of that copied than to its quantity ; in considering the quality of that copied, the simpler and more common place the plans or drawings the more closely must the alleged infringer adhere to the applicant's work; where a significant proportion of the features found in the challenged plan and that of the work in suit are common to all plans for the relevant subject matter, the subsistence of copyright in respect of those features may be limited; and in determining objective similarity, the court will be assisted by expert evidence which is of value in exposing facets of the ultimate question.
Case: AMP Incorporated v Utilux Pty Limited (1971) FSR 572
Outcome: cited
Consistent with long established principle, some aspect of visual appeal to the eye has been critical to a design. Although AMP Incorporated v Utilux Pty Limited (1971) FSR 572 suggested a shape 'chosen' solely to perform functional requirements of an article did not qualify as a design under the United Kingdom legislation, the Australian position from the outset (that is, enactment of the Designs Act 1906) has been that a design was not rendered invalid simply because a particular shape selected by the designer assisted a functional purpose ( Hosokawa Micron International Inc v Fortune (1990) 26 FCR 393 at p 429-430; Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at p 375). The Designs Act 1906 was amended by Act No. 42 of 1981 (perhaps as a result of the Utilux decision) to provide that a design would not be incapable of registration by reason that the features of shape serve only a functional purpose. Although qualification as a design has been discussed in the authorities in the context of registrability , qualification as a design depends simply on the definition of design, not the Designs Act's further requirements for registrability ( Greenfield Products Pty Ltd v Rover-Scott Bonnar Limited [1990] FCA 154 at p 25; (1990) 17 IPR 417 at 431-432). In other words, what are the features that inhere in a contended design and what is the role of the exclusion in the definition?
Case: Dart Industries v D&eacute;cor Corporation Pty Ltd (1989) 15 IPR 403
Outcome: cited
The notion of appeal to the eye does not necessarily mean aesthetic appeal (although that may well be present in a particular design) but simply means a 'mental conception conveyed to the mind of the eye' ( Dart Industries v D&eacute;cor Corporation Pty Ltd (1989) 15 IPR 403); in that sense, visual differentiation of shape is required. In some cases, the drawings potentially exhibiting a design may be complex such as detailed sectional engineering drawings and the features of shape may therefore be difficult to discern with the result that any element of appeal to the eye is solely based on the functional efficiency of the component (such as an engineering drawing for a sealed expansion joint for a bridge ( CIPEC v First Melbourne Securities (supra)). Although the pivot mechanism exhibits identifiable features of shape, I am satisfied that those features, although they involve some minor element of shape selection, are almost entirely dictated by the utilitarian function that a pivot mechanism must perform in facilitating the separation of the front and back sections of the bucket. In respect of that component therefore, there is no relevant design. However, I take a different view in relation to the inside mounting bracket and accept that the drawing for that component exhibits a design.
Case: Burge &amp; Ors v Swarbrick [2007] HCA 17
Outcome: cited
The immunity conferred by s 77(2) from copyright infringement arising out of reproduction of the work might logically be thought to include the making of a two-dimensional drawing along the way to application of the corresponding design to articles of manufacture otherwise the lawful act of applying the design to three-dimensional manufacture would be frustrated. It may be that not every application of the corresponding design involves the intermediate step of making a two-dimensional drawing in order to apply the features of shape to articles of manufacture. However, plainly enough, in a number of cases such a step is orthodoxy in the lawful application of the corresponding design. The scope of the immunity must ultimately be governed by the language of the sections selected by the Parliament but construed according to the legislative scheme adopted for striking the balance mentioned at [220] and discussed more broadly by their Honours Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ in Burge &amp; Ors v Swarbrick [2007] HCA 17 , [21]-[44].
Case: Firmagroup Australia Pty Ltd v Byrne &amp; Davidson Doors (Vic) Pty Ltd [1987] HCA 37 ; (1987) 180 CLR 483
Outcome: cited
There is one further matter which might have the effect of removing the features of shape from the scope of a design for the purposes of the Designs Act 1906 and, as a result, from the notion of a corresponding design. A design excludes 'a method or principle of construction' . As Merkel J notes in CIPEC v First Melbourne Securities (supra) [95] [98], the relevant principles emerged from the judgment of the High Court in Firmagroup Australia Pty Ltd v Byrne &amp; Davidson Doors (Vic) Pty Ltd [1987] HCA 37 ; (1987) 180 CLR 483 at 488. The notion is that only design features or those features which convey the idea of a particular shape qualify as a design. The contended design will not qualify to provide the proprietor with a monopoly in data or information conveying a method or principle of construction. To the extent that a drawing exhibits features of shape or ornamentation and thus exhibits a design but also contains dimensional data or other technological information facilitative of construction of an article of manufacture, such a drawing nevertheless continues to exhibit a design and is not prevented from falling within the scope of the definition of design merely by reason of the addition of other information. Although Wilcox J took a different view and determined that engineering drawings containing technological data either necessary or desirable for the manufacture of parts for slurry pumps for mining operations were not capable of registration as designs as a method or principle of construction and thus outside the definition of a design, I concur with the view of Merkel J in CIPEC v First Melbourne Securities that such a view adopts too broad an approach to the exclusion.
Case: Columbia Pictures Industries Inc v Luckins (1996) 34 IPR 504
Outcome: cited
There may be three difficulties with such an approach. The first is that there is no evidence that the applicant either was or might be willing to licence the reproduction of its drawings. There is evidence that the applicant had in mind licensing its drawings in 1997 and for that reason on a drawing dated 20 September 1994, the applicant endorsed the reference 'Copyright and Confidential Information of Norm Engineering Pty Ltd (c) Norm Engineering Pty Ltd 1997'. However, this step and these endorsements relate to the first plans and not the plans in suit although an inference might be drawn that the applicant's disposition to licence in 1997 reflects a disposition to do so now. However, I am not prepared to draw that inference. Secondly, a royalty or perhaps a licence fee does not provide an appropriate measure of damages where the copyright owner would not have granted a licence ( Columbia Pictures Industries Inc v Luckins (1996) 34 IPR 504 at 509; Autodesk Australia Pty Limited v Cheung (1990) 94 ALR 472 at 476-477; and Microsoft Corporation v Goodview (2000) 49 IPR 578 [55]). Thirdly, although the making of the infringing drawing is a step along the way to non-infringing three-dimensional reproduction, the non-infringing act was arguably only made possible by engaging in the infringing act. However, it seems to me that loss suffered by the applicant however it might be measured is referable to the non-infringing act rather than the reproduction of the drawing and accordingly reasonable compensation for the infringing act is a nominal amount of $100 in respect of each drawing. Although nominal, the applicant is entitled to damages for this infringement pursuant to s 115(2).
Case: Autodesk Australia Pty Limited v Cheung (1990) 94 ALR 472
Outcome: cited
There may be three difficulties with such an approach. The first is that there is no evidence that the applicant either was or might be willing to licence the reproduction of its drawings. There is evidence that the applicant had in mind licensing its drawings in 1997 and for that reason on a drawing dated 20 September 1994, the applicant endorsed the reference 'Copyright and Confidential Information of Norm Engineering Pty Ltd (c) Norm Engineering Pty Ltd 1997'. However, this step and these endorsements relate to the first plans and not the plans in suit although an inference might be drawn that the applicant's disposition to licence in 1997 reflects a disposition to do so now. However, I am not prepared to draw that inference. Secondly, a royalty or perhaps a licence fee does not provide an appropriate measure of damages where the copyright owner would not have granted a licence ( Columbia Pictures Industries Inc v Luckins (1996) 34 IPR 504 at 509; Autodesk Australia Pty Limited v Cheung (1990) 94 ALR 472 at 476-477; and Microsoft Corporation v Goodview (2000) 49 IPR 578 [55]). Thirdly, although the making of the infringing drawing is a step along the way to non-infringing three-dimensional reproduction, the non-infringing act was arguably only made possible by engaging in the infringing act. However, it seems to me that loss suffered by the applicant however it might be measured is referable to the non-infringing act rather than the reproduction of the drawing and accordingly reasonable compensation for the infringing act is a nominal amount of $100 in respect of each drawing. Although nominal, the applicant is entitled to damages for this infringement pursuant to s 115(2).
Case: Microsoft Corporation v Goodview (2000) 49 IPR 578
Outcome: cited
There may be three difficulties with such an approach. The first is that there is no evidence that the applicant either was or might be willing to licence the reproduction of its drawings. There is evidence that the applicant had in mind licensing its drawings in 1997 and for that reason on a drawing dated 20 September 1994, the applicant endorsed the reference 'Copyright and Confidential Information of Norm Engineering Pty Ltd (c) Norm Engineering Pty Ltd 1997'. However, this step and these endorsements relate to the first plans and not the plans in suit although an inference might be drawn that the applicant's disposition to licence in 1997 reflects a disposition to do so now. However, I am not prepared to draw that inference. Secondly, a royalty or perhaps a licence fee does not provide an appropriate measure of damages where the copyright owner would not have granted a licence ( Columbia Pictures Industries Inc v Luckins (1996) 34 IPR 504 at 509; Autodesk Australia Pty Limited v Cheung (1990) 94 ALR 472 at 476-477; and Microsoft Corporation v Goodview (2000) 49 IPR 578 [55]). Thirdly, although the making of the infringing drawing is a step along the way to non-infringing three-dimensional reproduction, the non-infringing act was arguably only made possible by engaging in the infringing act. However, it seems to me that loss suffered by the applicant however it might be measured is referable to the non-infringing act rather than the reproduction of the drawing and accordingly reasonable compensation for the infringing act is a nominal amount of $100 in respect of each drawing. Although nominal, the applicant is entitled to damages for this infringement pursuant to s 115(2).
Case: Interfirm Comparison (Aust) Pty Limited v Law Society of New South Wales (1975) 6 ALR 445
Outcome: cited
Measuring the diminished capital value of the asset is not the only way of forming a view as to the proper amount of 'reasonable compensation' attributable to the loss suffered by a copyright owner. The purpose of an award of damages for breach of copyright is to compensate the applicant for the loss suffered as a result of the respondent's infringing conduct ( Interfirm Comparison (Aust) Pty Limited v Law Society of New South Wales (1975) 6 ALR 445 at 446 (Bowen CJ); Bailey v Namol Pty Limited (1994) 53 FCR 102 at 111 (Burchett, Gummow and O'Loughlin JJ).