Case: Hogg v Scott (1874) LR 18 Eq 444 at 458
Outcome: cited
In the context of these observations, the following remarks of Lindgren J in Eagle Homes v Austec Homes (supra) concerning the role a finding of conscious copying plays in aiding the determination of the question of reproduction apply in the present case. The observations are these: '[91] ...In no case concerning project homes of which I am aware, where there has been such a finding of actual copying, has it been held that nonetheless the copier will not have infringed copyright unless there is in addition an extraordinarily close resemblance between his or her drawing and the copyright work. Rather, I think that the issue of sufficient objective similarity simply poses in the case of project homes, as in other cases, the usual question whether the copyright drawing can still be seen embedded in the allegedly infringing drawing, that is, whether the allegedly infringing drawing has adopted the "essential features and substance" of the copyright work Hanfstaengl v HR Baines &amp; Co Ltd [1895] AC 20 at 31 [Lord Shand]. [92] ... I do not accept, however, that where, as here, actual copying is found to have occurred, "reproduction", and therefore infringement, cannot be proved in the absence of such a specially close similarity as might be required in a particular case to support an inference of subjective copying. To insist that a copyright owner can satisfy the "sufficient objective similarity" limb 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. A copier intends to benefit from another's skill and labour. It may transpire that what the copier produces is, at the end of the day and as a result of whatever intervening causes, so dissimilar from the copyright drawing that the copyright drawing cannot be seen in the allegedly infringing drawing. But in my view that is not this case. ... [94] A similar observation was made by Starke J in Blackie &amp; Sons Ltd v Lothian Book Publishing Co Pty Ltd [1921] HCA 27 ; (1921) 29 CLR 396. His Honour, sitting at first instance, found actual copying and said (at 404): "It is not for the court to make the way of the taker of copyright matter easy. It is a sound principle of copyright law that the court should not allow one man to take away the result 'of another man's labour, or, in other words, his property', unless it is satisfied that the part taken is 'so slight, and the effect upon the total composition was so small', 'as to render the taking perfectly immaterial', or, what is much the same thing, that the part taken is an unsubstantial part: Hogg v Scott (1874) LR 18 Eq 444 at 458; Chatterton v Cave (1878) 3 App Cas 483 at 490, 495. ... [98] The two elements of "causal link" and "sufficient objective similarity" are not referred to in the Act and are but aspects of "reproduction". The two are interrelated and it can be artificial to consider them separately, at least in a case like the present one where actual copying is found to have occurred. A finding of copying can add significance to objective similarity; cf Anchor, Mortlock, Murray &amp; Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 at 289; S W Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 474; 61 ALR 251 (Wilson J). [99] It is often suggested that, once a copyright owner has established subjective copying, that makes easier the task of proving that what was taken was "a substantial part" of a protective work. For example, in Anchor, Mortlock, Street J said (at 289) "I have already ... inferred that the defendant did engage in unfair copying of the plaintiff's plans and houses. This adds significance to the similarities that do exist and diminishes significance from the dissimilarities". See also Bradbury v Hotten (1872) 8 LR Ex 1 and Chappell &amp; Co Ltd v D C Thompson &amp; Co Ltd [1928-35] MacG Cop Cas 476 (Ch D).'