mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1669
Outcome: applied
In the case of Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1669 French J at 20 at [66] said: 'The doctrines of res judicata , issue estoppel and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted litigation of a dispute already judicially determined. As another Full Court said in Coffee v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434 (at 443): "An attempt to litigate in the Court a dispute or issue which has been resolved in earlier litigation in another court or tribunal may constitute an abuse of process even though the earlier proceeding does not give rise to res judicata or issue estoppel; see Culture International v Scoles (1991) 32 FCR 275 at 279 and Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 393-394. Whether it does depends on the facts of the particular case." ' 84 French J went on to say at 21 at [69]: 'The public interest considerations underlying the power of courts to stay or dismiss the proceedings for abuse of process extend to preventing the waste judicial resources and their use for purposes unrelated to the determination of genuine disputes. They include the necessity of maintaining confidence in, and respect for, the authority of the courts Sea Culture International v Scoles (1991) 32 FCR 275 (at 279 French J); Djaigween v Douglas (1994) 48 FCR 535 (at 54 Carr J). The power to strike out a statement of claim or to dismiss an application as an abuse of process is to be exercised sparingly and upon an examination of the relevant circumstances of the particular case before the Court...'
Case: Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598
Outcome: cited
I turn now to the respondent's argument that the applicant's claim in par 4 is, in any event, misconceived. It is also not necessary to decide this issue, but as the matter was argued and I will briefly set out the view to which I would have come. It is a well established principle that a court should not summarily dismiss an application on the basis that there is no reasonable cause of action unless it is clear that the case is bound to fail ( Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 at 602-603). In my view, the applicant's claim is bound to fail.
Case: Adelaide Corporation v Australia Performing Right Association Ltd [1928] HCA 10 ; (1928) 40 CLR 481
Outcome: cited
While the Court must take these matters into account, they are not the only matters that may be taken into account: Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 at [13] per Branson J; [135] per Kenny J, French J agreeing (concerning the construction and application of s 101(1A) of the Act which corresponds in terms to s 36(1A), in the context of infringement of copyright in sound recordings, films and the like). Both these sections are premised on the concept of "authorisation" developed by the High Court in University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1; Cooper at [136]. The word "authorise" in the cases has been given its dictionary meaning of "sanction, approve or countenance": Falcon v Famous Players Film Company [1926] 2 KB 474; Adelaide City Corporation v Australasian Performing Right Association Ltd [1928] HCA 10 ; (1928) 40 CLR 481; Moorhouse at 12 (Gibbs J), 20-21 (Jacobs J); WEA International Inc v Hanimex Corp Ltd (1987) 17 FCR 274, 285-286 (Gummow J); Cooper at [20] per Branson J, French J agreeing.
Case: Ancher, Mortlock, Murray &amp; Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278
Outcome: applied
While the above considerations are, typically, considered in a cumulative sense, I will address each of them in turn. Ultimately, however, whether the Alleged Infringing Works are, in each case, sufficiently similar to the Copyright Works such as to amount to a reproduction of a substantial part of these or any of these, is for the Court to determine and the Court will be assisted by expert evidence which "is of value in exposing the facets of the ultimate question to which the expert opinion evidence is directed": Ancher, Mortlock, Murray &amp; Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 at 286. 29 The question is whether the alfresco quadrant in each of the Seattle 31 and Memphis 33 plans and homes constitutes a substantial part of each plan and home in the Alleged Infringing Works within the meaning of s 14 of the Act. The applicants submitted that this is the case for a number of reasons. 30 First, the applicants asserted that the alfresco quadrant was the main communal living area of the home hence the design was of qualitative significance. As a corollary, it was submitted that the orientation of the kitchen was important, being at the "hub" of the design, which could be viewed from all rooms within the alfresco quadrant. 54 Consistent with the above analysis, it has been suggested that where subjective copying is found, the task of proving objective similarities of what was taken was a "substantial part" of the protected work becomes "easier" to find: see Eagle Homes and Ancher, Mortlock, Murray &amp; Woolley Pty Ltd at 289. 55 My findings below of subjective copying have enabled me more readily to find objective similarities between the Alleged Infringing Works and the Copyright Works. 115 Where objective similarities are so close that it is open to the Court to draw an inference of copying, then such an inference may be rebutted by the respondents by evidence which explains the provenance of the similarities other than as the result of copying the applicants' copyright works: Pacific Gaming at [19] citing Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275, at 296-297; Ancher, Mortlock, Murray &amp; Woolley Pty Ltd at 284; Francis Day &amp; Hunter Ltd v Bron [1963] Ch 587 at 614.
Case: Australasian Performing Right Association Ltd v Jain (1990) 26 FCR 53
Outcome: cited
It is a question of fact in each case, as to what inferences may be drawn from the conduct of the person said to have authorised the act of which complaint is made: Winstone v Wurlitzer Automatic Phonograph Co of Australia Pty Ltd [1946] VLR 338. This was referred to with apparent approval by the Full Court in Australasian Performing Right Association Ltd v Jain (1990) 26 FCR 53 at 59. 266 However it is not necessary here to do so. The case against Palazzesi and Popple is not that they are liable for the tort of Metricon, but rather that each was liable for infringement by authorisation under s 36(1A) of the Act. The applicants refer to Australasian Performing Right Association v Jain (1990) 26 FCR 53. No reliance was placed by the applicants upon the Performing Right Society test or the Mentmore test.
Case: Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300
Outcome: cited
Emphasis on quality rather than quantity is further exemplified in more recent Australian authorities. In Data Access Corp v Powerflex Services Pty Ltd [1999] HCA 49 ; (1999) 202 CLR 1 at [32] , a majority of the High Court endorsed the views expressed by Mason CJ in dissent in Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 at 305. In that case, Mason CJ, citing Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 stated: Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected. For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I think, which is meant by one or two judicial observations that 'there is no copyright' in some unoriginal part of a whole that is copyright. As this statement makes clear, in determining whether the quality of what is taken makes it a 'substantial part' of the copyright work, it is important to inquire into the importance which the taken portion bears in relation to the work as a whole: is it an 'essential' or 'material' part of the work? ...in the context of copyright law, where emphasis is to be placed upon the 'originality' of the work's expression, the essential or material features of a work should be ascertained by considering the originality of the part allegedly taken. (Emphasis added)
Case: Chabot v Davies [1936] 3 All ER 221
Outcome: cited
To establish infringement in three dimensions from the applicants' plans, the test is still a visual one and it is necessary here to establish that a substantial part of each of the Alleged Infringing Works resembles visually a substantial part of those plans, namely the alfresco quadrant: see further Lend Lease Homes Pty Ltd v Warrigal Homes Pty Ltd [1970] 3 NSWR 265, 273-274; LED Builders Pty Ltd and, in relation to the Copyright Act 1911 , see Chabot v Davies [1936] 3 All ER 221 at 227-228.
Case: Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309
Outcome: applied
In the end, cases such as the instant one are a 'matter of impression' as pointed out by the Full Court in Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309 at [34]. In examining the quality of the alfresco quadrant with respect to the whole of the Copyright Works, I view that part as being substantial. This view was also supported by my personal inspection and impression of the Seattle 31 design at the Beaconsfield address. On inspection, I found that the Seattle 31 home consisted of a central hallway leading into the hub of the home that incorporated: &#8226; the kitchen/meals area; &#8226; the family/living area; &#8226; the alfresco; and &#8226; the rumpus room all under a single ('hip') roof-line. The roof-line was viewed on an external inspection of the home. The view that I express here, was my initial view from the third day of the hearing before much of the oral testimony. It remained unchanged throughout the course of the hearing. The parties have agreed that my impression of the Copyright Works and the Alleged Infringing Works, from my personal inspection, are to form part of the evidence. Cases such as Clarendon support this approach. 40 The layout of the Seattle 31 gave the impression of a free-flowing design, leading from the hallway to the hub of the home, with the alfresco quadrant, under one roof-line, being central to the design. The impression was reinforced by the open-plan kitchen that looked over the living and alfresco areas. The design allowed one to view into the rumpus room which enhanced the free-flowing design features of the Seattle 31 plan. These features were clearly based in a communal area of the plan, so as to optimise appreciation of the alfresco quadrant and surrounding living areas. Based on my impression, I would describe the alfresco quadrant as being substantial in a qualitative sense.
Case: Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187
Outcome: applied
While the Court must take these matters into account, they are not the only matters that may be taken into account: Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 at [13] per Branson J; [135] per Kenny J, French J agreeing (concerning the construction and application of s 101(1A) of the Act which corresponds in terms to s 36(1A), in the context of infringement of copyright in sound recordings, films and the like). Both these sections are premised on the concept of "authorisation" developed by the High Court in University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1; Cooper at [136]. The word "authorise" in the cases has been given its dictionary meaning of "sanction, approve or countenance": Falcon v Famous Players Film Company [1926] 2 KB 474; Adelaide City Corporation v Australasian Performing Right Association Ltd [1928] HCA 10 ; (1928) 40 CLR 481; Moorhouse at 12 (Gibbs J), 20-21 (Jacobs J); WEA International Inc v Hanimex Corp Ltd (1987) 17 FCR 274, 285-286 (Gummow J); Cooper at [20] per Branson J, French J agreeing. 263 The degree of control which can constitute a sufficient basis for a finding of authorisation is a question of fact and degree: Cooper per Kenny J, French J agreeing at [142]. 265 In Cooper at [159]-[164], Kenny J observed that no Full Court of this Court had settled which of these two tests was to be preferred, or indeed whether the exposition by Finkelstein J in Root Quality Pty Ltd v Root Control Technologies Pty Ltd (2000) 177 ALR 231 ought be followed.
Case: Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490
Outcome: cited
The test for infringement is found in the well known passage from the judgment of Gibbs CJ in S W Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 (with whom Mason and Brennan JJ agreed). In that case, the Chief Justice said: The notion of reproduction, for the purposes of copyright law, involves two elements -- resemblance to, and actual use of, the copyright work, or, to adopt the words which appear in the judgment of Willmer LJ in Francis Day &amp; Hunter Ltd v Bron [1963] Ch 587 at 614, "a sufficient degree of objective similarity between the two works" and "some causal connection between the plaintiffs' and the defendants' work". (Emphasis added) See also Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490 at 495; LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215 at 218; Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443; Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [17] . 26 In other words, if an unoriginal part of the whole is taken that does not represent a substantial part of the labour, skill and judgment of the author that made the whole work 'original', then there is no infringement: Powerflex at [32]. See also, Klissers Bakeries v Harvest Bakeries (1985) IPR 533 and Dixon Investments and Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172.
Case: Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415
Outcome: cited
The test for infringement is found in the well known passage from the judgment of Gibbs CJ in S W Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 (with whom Mason and Brennan JJ agreed). In that case, the Chief Justice said: The notion of reproduction, for the purposes of copyright law, involves two elements -- resemblance to, and actual use of, the copyright work, or, to adopt the words which appear in the judgment of Willmer LJ in Francis Day &amp; Hunter Ltd v Bron [1963] Ch 587 at 614, "a sufficient degree of objective similarity between the two works" and "some causal connection between the plaintiffs' and the defendants' work". (Emphasis added) See also Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490 at 495; LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215 at 218; Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443; Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [17] .
Case: Falcon v Famous Players Film Co [1926] 2 KB 474
Outcome: cited
While the Court must take these matters into account, they are not the only matters that may be taken into account: Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 at [13] per Branson J; [135] per Kenny J, French J agreeing (concerning the construction and application of s 101(1A) of the Act which corresponds in terms to s 36(1A), in the context of infringement of copyright in sound recordings, films and the like). Both these sections are premised on the concept of "authorisation" developed by the High Court in University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1; Cooper at [136]. The word "authorise" in the cases has been given its dictionary meaning of "sanction, approve or countenance": Falcon v Famous Players Film Company [1926] 2 KB 474; Adelaide City Corporation v Australasian Performing Right Association Ltd [1928] HCA 10 ; (1928) 40 CLR 481; Moorhouse at 12 (Gibbs J), 20-21 (Jacobs J); WEA International Inc v Hanimex Corp Ltd (1987) 17 FCR 274, 285-286 (Gummow J); Cooper at [20] per Branson J, French J agreeing.
Case: Francis Day &amp; Hunter Ltd v Bron [1963] Ch 587
Outcome: cited
The test for infringement is found in the well known passage from the judgment of Gibbs CJ in S W Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 (with whom Mason and Brennan JJ agreed). In that case, the Chief Justice said: The notion of reproduction, for the purposes of copyright law, involves two elements -- resemblance to, and actual use of, the copyright work, or, to adopt the words which appear in the judgment of Willmer LJ in Francis Day &amp; Hunter Ltd v Bron [1963] Ch 587 at 614, "a sufficient degree of objective similarity between the two works" and "some causal connection between the plaintiffs' and the defendants' work". (Emphasis added) See also Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490 at 495; LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215 at 218; Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443; Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [17] . 115 Where objective similarities are so close that it is open to the Court to draw an inference of copying, then such an inference may be rebutted by the respondents by evidence which explains the provenance of the similarities other than as the result of copying the applicants' copyright works: Pacific Gaming at [19] citing Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275, at 296-297; Ancher, Mortlock, Murray &amp; Woolley Pty Ltd at 284; Francis Day &amp; Hunter Ltd v Bron [1963] Ch 587 at 614.
Case: Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443
Outcome: cited
The test for infringement is found in the well known passage from the judgment of Gibbs CJ in S W Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 (with whom Mason and Brennan JJ agreed). In that case, the Chief Justice said: The notion of reproduction, for the purposes of copyright law, involves two elements -- resemblance to, and actual use of, the copyright work, or, to adopt the words which appear in the judgment of Willmer LJ in Francis Day &amp; Hunter Ltd v Bron [1963] Ch 587 at 614, "a sufficient degree of objective similarity between the two works" and "some causal connection between the plaintiffs' and the defendants' work". (Emphasis added) See also Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490 at 495; LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215 at 218; Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443; Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [17] .
Case: Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275
Outcome: cited
Where objective similarities are so close that it is open to the Court to draw an inference of copying, then such an inference may be rebutted by the respondents by evidence which explains the provenance of the similarities other than as the result of copying the applicants' copyright works: Pacific Gaming at [19] citing Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275, at 296-297; Ancher, Mortlock, Murray &amp; Woolley Pty Ltd at 284; Francis Day &amp; Hunter Ltd v Bron [1963] Ch 587 at 614.
Case: Kenrick &amp; Co v Lawrence &amp; Co (1890) 25 QBD 99
Outcome: applied
The application of copyright law to project homes and designs is not without difficulty. The competing concepts in copyright law of 'ideas' and 'expression of ideas' underpin the difficulty: Kenrick &amp; Co v Lawrence &amp; Co (1890) 25 QBD 99 provides an apt illustration. In that case, the author had printed a card that assisted illiterate voters. The card's design was simple. The design depicted a hand holding a pencil in the act of completing a cross within a square. Willis J held that the copyright protection sought would protect the idea rather than the expression alone, since "a square can only be drawn as a square, a cross can only be drawn as a cross, and for such purposes as the plaintiff's drawing was intended to fulfil, there are scarcely more ways than one of drawing a pencil or the hand that holds it": Kenrick at 104. The case is an extreme example, but gives expression to the idea-form dichotomy. 62 The respondents point to the fact that the doors and windows are differently sized and positioned. These differences, it was submitted, were highly significant given the asserted limited scope for variation in what they described as the very restrictive part of the plan relied upon by the applicants. Kenrick was used to support the respondents' submission. I disagree. This is not a " Kenrick "-like case, where there was only one means of expressing the idea of a hand ticking a box. Instead, it conforms with what Wilcox and Lindgren JJ stated in Tamawood , that "broad functional requirements can be satisfied in more ways that one" at [56]. The evidence discloses that there are a number of ways of incorporating an alfresco in combination with a kitchen, living, dining and rumpus. Accordingly, the plan as expressed in the Seattle 31 design is far from obvious, as contended by the respondents' counsel and witnesses. I reject the submission that the design of the alfresco quadrant was 'obvious'. For example, there was no necessity for the shape of the alfresco to be rectangular: there are examples of angled rectangular shapes in the prior art. Longer rectangular features, squares and other shapes thus were possible options.
Case: King v Milpurrurru (1996) 66 FCR 474
Outcome: referred to
It was submitted on behalf of Palazzesi and Popple that the authorities on personal liability of corporate officers such as them, for authorising conduct of the company that infringes copyright, are ambiguous. In King v Milpurrurru (1996) 66 FCR 474 at 494 500, Beazley J identified two competing lines of authority: the Performing Right Society test and the Mentmore test. See also Allen Manufacturing Co Pty Ltd v McCallum &amp; Co Pty Ltd (2001) 53 IPR 400. Under the former test, the corporate officer must be shown to have procured or directed the company's infringing conduct. Under the latter test, it is necessary to show the deliberate, wilful and knowing pursuit of a course of conduct that was likely to constitute infringement or that reflected an indifference to the risk of it.
Case: Klissers Bakeries v Harvest Bakeries (1985) IPR 533
Outcome: cited
In other words, if an unoriginal part of the whole is taken that does not represent a substantial part of the labour, skill and judgment of the author that made the whole work 'original', then there is no infringement: Powerflex at [32]. See also, Klissers Bakeries v Harvest Bakeries (1985) IPR 533 and Dixon Investments and Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172.