Case: Spectravest Inc v Aperknit Ltd [1988] FSR 161
Outcome: cited
As rightly pointed out in Eagle Homes the word "reproduction" is not defined in the Act. Its ordinary meaning, however, is to "make a copy, representation, duplicate, or close imitation of" (Macquarie Dictionary) or "repeat in a more or less exact copy; produce a copy or representation of" (New Shorter Oxford English Dictionary). The question that follows from this is: how much of the copyright work must be reproduced before it can be said that the 'work' has been reproduced and how similar must it be to the copyright work? See Eagle Homes at [70]. There Lindgren J considered how s 14(1) and s 31(1)(b)(i) of the Act interrelate as applied to the "Paterson" and "Kookaburra" project homes that were the subject of the litigation. At [70] to [71], his Honour stated: The effect of s 14(1) of the Act is that the reference in s 31(1)(b)(i) to reproducing an artistic work in a material form includes a reference to reproducing a substantial part of such a work in a material form. In terms, this provision acknowledges a distinction between the undifferentiated whole of a copyright work and a substantial part of it. The 'Paterson' does not reproduce exactly the whole of the 'Kookaburra'. Copinger and Skone James on Copyright (13th ed, 1991), par 8 20 states as follows: ... Alternatively, the defendant's work may have been taken from part only of the plaintiff's work. Here, the defendant's work may be an exact reproduction of that part of the plaintiff's work or it may only to a greater or lesser degree resemble that part. In this alternative class of case, the first step is to identify the part of the plaintiff's work which is alleged to have been reproduced and then decide whether it constitutes a substantial part of the plaintiff's work. If it does, but it is not an exact copy of that part, it must then be decided whether it is a reproduction or colourable imitation of that part of the plaintiff's work. [ Spectravest Inc v Aperknit Ltd [1988] FSR 161]. 244 The Coburn design raises some different considerations. As Dr Cooke points out, the alfresco, dining and sitting areas in the Coburn, compared with the Prada 35, have been repositioned such that the rumpus (or home theatre) opens to the dining area, whereas the Seattle 31 alfresco space is bordered by the rumpus room and meals area. This, he said, results in plans less similar to the Seattle 31 than the Prada 35 plans. Still, his view was that the Coburn plans had been derived by reference to the Seattle 31 plans via modified Prada 35 plans. I accept this opinion and it conforms with my own impressions. The alfresco area, even though repositioned, is under one roof-line and on my view of the home, maintained the same distinct and significant impression. The changes are minor and inconsequential: Spectravest Inc v Aperknit Ltd [1988] FSR 161. 245 Again, I have accepted the expert opinion evidence of Dr John Cooke to the effect that the alfresco quadrant in each of the Tyrell 29, the Connolly 30 and the Streeton 34 plans and homes were subject to minor modifications, essentially the same as the Seattle 31 plan and home. This is so whether the comparison is plan to plan, home to home or plan to home. These opinions involving comparisons with the Seattle 31 plan and home were generally also applicable to the same comparisons but involving the Memphis 33 plan and home. This too was the case in comparisons between the Memphis 33 plan and home and the Coburn plan and home. 246 I have again not, for reasons I explain below, afforded any weight to the opinion of Mr John Permewan.