Case: Enzed Holdings Limited v Wynthea Pty Limited (1984) 57 ALR 167
Outcome: cited
In those circumstances, s 77(2) provides that it is not an infringement of the copyright in the artistic work to reproduce the work on or after the relevant date by applying the corresponding design or any other corresponding design to an article. A corresponding design in simple terms is a design which has a relevant correspondence with the artistic work. A 'corresponding design' in relation to an artistic work, in precise terms, means a 'design' that when 'applied' to an 'article' results in a 'reproduction' of that work (leaving aside the exclusion in the concluding words of the definition (s 74)). 219 The term 'design' is not defined in the Copyright Act but it is a central conception of the Designs Act 1906 (Cth). There it is defined to mean 'features of shape, configuration, pattern or ornamentation applicable to an article, being features that, in the finished article, can be judged by the eye, but does not include a method or principle of construction' (s 4). 220 Sections 74 to 77 of the Copyright Act seek to provide a solution to the overlap between the bundle of exclusive rights comprising the copyright in an artistic work (and their duration) and the perceived need for limitations upon those rights in respect of a design inherent in the artistic work applied industrially in the manufacture of articles which exhibit, to the eye, those design features. Since the scope and duration of rights in such a design, if registered, is comparatively constrained by the Designs Act 1906, ss 74 and 77 of the Copyright Act seek to constrain the reach of the copyright in the artistic work so that no copyright infringement arises if the challenged conduct is the application of the design to a particular article that results in a reproduction of the artistic work even though the copyright owner's design was not registered nor registrable. 295 However, that sum does not represent a reasonable or fair estimate of the compensatory loss actually suffered by the applicant because it represents a construct based on the particular assumption. The court must do its best to quantify the actual loss even if some degree of speculation or even possible guess work is involved in this exercise ( Aristocrat Technologies Australia Pty Limited v DAP Services [2007] FCAFC 40 per Black CJ and Jacobson). The court is not relieved from the duty of assessing the loss merely because circumstances do not admit of damages being assessed with certainty ( McRae v Commonwealth Disposals Commission [1950] HCA 12 ; (1951) 84 CLR 377 at 412 per Dixon and Fullagar JJ; Enzed Holdings Limited v Wynthea Pty Limited (1984) 57 ALR 167 at p 183 per Sheppard, Morling and Wilcox JJ where their Honours said, 'The principle is clear. If the court finds damage has occurred it must do its best to quantify the loss even if a degree of speculation and guess work is involved. Furthermore, if actual damage is suffered, the award must be for more than nominal damages' . See also The Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 ; (1992) 174 CLR 64 at 83 per Mason CJ and Dawson J, where their Honours said, 'The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can' ).