mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215
Outcome: cited
Copying in relation to building plans is not confined to tracing and can be established even where there are significant differences between the finished products. In LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215 , there were differences in room sizes, window placings, wall alignments, and cupboards between the plans of the applicant and respondent. Nonetheless, these differences were minor and there was found to be reproduction of a substantial part of the applicant's plans. 65 Davies J found that the respondent did not ask its draftsmen to copy the applicant's plans. The respondent gave instructions to change the respondent's existing plans, both by way of sketches and orally, which, when implemented, would bring those plans into line with the applicant's plans. This was said to constitute deliberate copying, though achieved by the giving of instructions for change rather than the direct tracing of one plan from another. There was thus a causal connection between the two sets of plans. 93 In support of its argument, Inform noted Davies J's comments in LED Builders v Eagle Homes , in which he said (at 217): "What stands out is that the overall positioning, orientation, and designs of the rooms, of the entry and of the garage are practically identical. So also is the general relationship between the house and its environs. Note that in each case, the garage is in the same position in LED's and Eagle's comparable drawings, notwithstanding that the garage in drawings A1 and A2 is situated differently from the garage in drawings B1 and B2." 116 Inform contended that the authorities were careful to point out that the conceptual limits of project home copyright should not be overstated: Eagle Homes v Austec Homes ; LED v Eagle Homes and Clarendon Homes v Henley Arch, Tamawood v Henley Arch and Barrett Property Group v Metricon Homes . It noted that copyright protection had been given to the combination and arrangement of rooms and spaces in a design and the "flow" or movement and other aspects arising from that arrangement and associated design choices (eg Eagle Homes v Austec Homes).
Case: Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd [2008] FCA 375
Outcome: cited
In the absence of any direct evidence of copying, or access by the respondent to the applicant's work, the causal link can be inferred. The greater the degree of objective similarity, the more likely it will be that that inference will be drawn: SW Hart &amp; Co v Edwards Hot Water Systems (at 472); Clarendon Homes v Henley Arch and Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd [2008] FCA 375 . 91 Inform said that the placement of the central stair with the wet areas around it, and the interrelationship of these design features to the remaining spaces of the house, were at least as substantial to the overall design as was the al fresco quadrant in Barrett Property v Carlisle Homes . In that case, the Court held that an al fresco quadrant, which comprised a combination of rumpus, family, kitchen and meals areas around an open courtyard enclosed on three sides, all under a single roof, was a substantial part of the design. 92 Inform said that Courts had been ready, sometimes implicitly, to find particular design features, and the layout and interrelationship of rooms in plans, as constituting a substantial part. Moreover, they had regularly stopped short of finding it necessary to list or define the elements as constituting a substantial part, which was consistent with the role that subjective impression had to play in the process.
Case: Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd (2007) 74 IPR 52
Outcome: cited
The operative similarity need not be, and indeed rarely will be, to the entire work. However, correspondence to a substantial part of the applicant's design will be sufficient to ground infringement: Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd (2007) 74 IPR 52 . It is not necessary to show that the alleged copy is a perfect reproduction of a substantial part of the applicant's work: British Northrop Ltd v Texteam Blackburn Ltd [1974] RPC 57 at 72 per Megarry J.
Case: British Northrop Ltd v Texteam Blackburn Ltd [1974] RPC 57
Outcome: cited
The operative similarity need not be, and indeed rarely will be, to the entire work. However, correspondence to a substantial part of the applicant's design will be sufficient to ground infringement: Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd (2007) 74 IPR 52 . It is not necessary to show that the alleged copy is a perfect reproduction of a substantial part of the applicant's work: British Northrop Ltd v Texteam Blackburn Ltd [1974] RPC 57 at 72 per Megarry J.
Case: Autodesk Inc v Dyason [No 2] [1993] HCA 6 ; (1993) 176 CLR 300
Outcome: cited
Determining whether "a substantial part of the work" has been reproduced is a question of fact and degree. As indicated, greater weight must be given to the quality of what is reproduced than to its quantity: SW Hart &amp; Co v Edwards Hot Water Systems. The protected element may arise out of a combination of elements, any one of which considered individually might not qualify as sufficiently original to attract copyright. An allegation of substantial reproduction will be made out if what has been taken is an essential or material part of the applicant's work: Autodesk Inc v Dyason [No 2] [1993] HCA 6 ; (1993) 176 CLR 300 per Mason CJ at 305; Tamawood v Henley Arch at [52]; and Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490 at 494 per Lockhart, Spender and Ryan JJ .
Case: Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490
Outcome: cited
Determining whether "a substantial part of the work" has been reproduced is a question of fact and degree. As indicated, greater weight must be given to the quality of what is reproduced than to its quantity: SW Hart &amp; Co v Edwards Hot Water Systems. The protected element may arise out of a combination of elements, any one of which considered individually might not qualify as sufficiently original to attract copyright. An allegation of substantial reproduction will be made out if what has been taken is an essential or material part of the applicant's work: Autodesk Inc v Dyason [No 2] [1993] HCA 6 ; (1993) 176 CLR 300 per Mason CJ at 305; Tamawood v Henley Arch at [52]; and Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490 at 494 per Lockhart, Spender and Ryan JJ .
Case: Ladbroke (Football) Ltd v William Hill (Football)Ltd [1964] 1 All ER 465
Outcome: cited
It noted that in Ladbroke (Football) Ltd v William Hill (Football) [1964] 1 WLR 273 , Lord Pearce said (at 293): "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'."
Case: Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443
Outcome: cited
Boutique submitted that many of these features were either mere ideas or common to all project homes. It will be recalled that in Tamawood v Henley Arch, the Court observed (at [38]) that the application of the law of copyright to project home plans gave rise to special difficulty. All modern homes had certain features in common and, in the case of project homes competing for the "same number of dollars", there were pressures towards sameness. See also Eagle Homes v Austec Homes at [80] per Lindgren J . In Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443 , Merkel J (at 460) went so far as to suggest that the degree of the protection under copyright of an architectural plan might be limited by reason of the proportion of features common to all plans.
Case: Metricon Homes Pty Ltd v Barrett Property Group Pty Ltd [2008] FCAFC 46
Outcome: cited
Boutique submitted that it was in the light of findings of deliberate copying that both Eagle Homes v Austec Homes and Barrett Property Group v Metricon Homes (affirmed on appeal: Metricon Homes Pty Ltd v Barrett Property Group Pty Ltd [2008] FCAFC 46) should be viewed. In a case involving at its highest an allegation of subconscious reproduction, a close objective similarity in the detail of the two plans should be required before there could be any finding that a substantial part had been taken.
Case: Autodesk Inc v Dyason [1992] HCA 2 ; (1992) 173 CLR 330
Outcome: cited
As previously discussed, copyright protects the form in which ideas are expressed but not the ideas themselves: Autodesk Inc v Dyason [1992] HCA 2 ; (1992) 173 CLR 330 at 344 per Dawson J. It does not prevent the development and expansion of ideas or the furtherance of architectural concepts: Clarendon Homes v Henley Arch at [16]. To constitute an infringement, the act must constitute an unauthorised use of the form of the work and not merely its idea or theme or method. 115 Inform's submissions on this point were not detailed. It noted that in cases involving architectural designs, broad design concepts were not subject to protection but their form, as found in a given design, was if they were neither mere copies nor entirely generic concepts. Inform conceded that with project homes, the idea/expression dichotomy could be harder to distinguish because of the degree to which function dictated form and the fact that such homes were often composed of stock elements common to the genre. However, Inform submitted that such concerns had limited application in this case because the Urban and Seasons designs were not "run-of-the-mill variants" of standard project home lines.
Case: R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13
Outcome: referred to
NLC took the view that it should not play an active role in these proceedings except in one respect, because there is a proponent and an opponent to the claims made. That was a proper approach: R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 at 33-35. It made submissions concerning its powers and the proper construction of the ALRA. It took that position because there was no intervention by the Attorney-General or other public officer to inform the Court on those issues, beyond the particular interests of the parties. In my view, the NLC acted consistently with the decision in Hardiman in adopting that role: see e.g. TXU Electricity Ltd v Office of the Regulator-General [2001] VSC 4 ; (2001) 3 VR 93 at [44] .
Case: TXU Electricity Ltd v Office of the Regulator-General [2001] VSC 4 ; (2001) 3 VR 93
Outcome: referred to
NLC took the view that it should not play an active role in these proceedings except in one respect, because there is a proponent and an opponent to the claims made. That was a proper approach: R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 at 33-35. It made submissions concerning its powers and the proper construction of the ALRA. It took that position because there was no intervention by the Attorney-General or other public officer to inform the Court on those issues, beyond the particular interests of the parties. In my view, the NLC acted consistently with the decision in Hardiman in adopting that role: see e.g. TXU Electricity Ltd v Office of the Regulator-General [2001] VSC 4 ; (2001) 3 VR 93 at [44] .
Case: Risk v Northern Territory [2002] HCA 23 ; (2002) 210 CLR 392
Outcome: cited
ALRA provides for the granting of traditional Aboriginal land in the Northern Territory for the benefit of Aboriginals and for other purposes. Its scheme has been explained by the High Court in Risk v Northern Territory [2002] HCA 23 ; (2002) 210 CLR 392 at 398-403 and 409-412. See also Northern Land Council v Olney (1992) 34 FCR 470 at 475-478.
Case: Foster v Lindsay (Unreported, Supreme Court of the Northern Territory, 16 January 1998)
Outcome: cited
they did not express their concerns formally, so as to ensure the land grant took place, as it ultimately did on 21 February 1990. The members of the Land Trust when it was formed included some members of the Kamu. They had discussions with the Malak Malak before then, during which apparently some agreement was reached. The agreement, and the circumstances in which it was made, were not found to create any estoppel: Foster v Lindsay (Unreported, Supreme Court of the Northern Territory, 16 January 1998 (Martin CJ)), and the Committee concluded for reasons it expressed (which were not challenged) that the agreement was not enforceable.
Case: Repatriation Commission v Strickland (1990) 22 ALD 10
Outcome: cited
contention was not that the Committee could not use its knowledge and expertise to determine the issues before it. They may do so: Repatriation Commission v Strickland (1990) 22 ALD 10; Szelagowicz v Stocker (1994) 54 IR 302 at 306. The contention was (as explained by the Malak Malak reply submissions) that the Committee's focus on those matters was irrelevant to the task at hand.
Case: Szelagowicz v Stocker (1994) 54 IR 302
Outcome: cited
contention was not that the Committee could not use its knowledge and expertise to determine the issues before it. They may do so: Repatriation Commission v Strickland (1990) 22 ALD 10; Szelagowicz v Stocker (1994) 54 IR 302 at 306. The contention was (as explained by the Malak Malak reply submissions) that the Committee's focus on those matters was irrelevant to the task at hand.
Case: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273
Outcome: referred to
definition of 'traditional Aboriginal owners' accommodates, rather than excludes, such circumstances. If it were intended that, in respect of a particular site, there would be only one group of traditional Aboriginal owners, it would have been expressed to refer to 'the' local descent group rather than 'a' local descent group. In my view, the use of the indefinite article is intended to allow for more than one such group. The use of the definite article in subpar(a) of the definition before the word 'group' is then simply a reference back to the particular local descent group or groups found to exist and require that that particular group or groups have the characteristics specified. In addition, I consider that the use of the indefinite article before the words 'primary spiritual responsibility' also recognise that there may be more than one local descent group, otherwise that part of the definition would also refer to 'the' primary responsibility so as to exclude other local descent groups in respect of a particular site. See e.g. per Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 289. To the extent that it is necessary, reliance for such a construction may be derived from s 23(b) of the Acts Interpretation Act 1901 (Cth) which provides for the singular to include the plural. Neither text of the definition of 'traditional Aboriginal owners', nor its context in the ALRA, indicates that a contrary intention to that construction emerges.
Case: R v Kearney; Ex parte Jurlama [1984] HCA 14 ; (1984) 158 CLR 426
Outcome: referred to
construction is consistent with a number of reports of Aboriginal Land Commissioners under the ALRA. They are noted in Neate , Aboriginal Land Rights Law in the Northern Territory, Alternative Publishing Co-operative Ltd, Sydney, 1989 at Ch 3 fn 298. Since 1989, a number of similar reports have been made, including Justice Gray in the Jawoyn (Gimbat Area) Land Claim Report, 1995 (especially at [4.28]) and Justice Olney in the Wakaya/Alawarre Land Claim Report, 1990 (especially at [5.8]). I note, as senior counsel for the Malak Malak pointed out, both those reports concerned claimant groups who were not competing with each other. Moreover, that construction in my view is consistent with giving the ALRA a broad construction so as to give effect to the beneficial purpose for which it was intended: see e.g. R v Kearney; Ex parte Jurlama [1984] HCA 14 ; (1984) 158 CLR 426 at 433; and Northern Land Council v Olney at 479. It is unlikely that the ALRA was intended either to exclude altogether from the traditional ownership both local descent groups if (for example) there were found to be two local descent groups each with the specified characteristics in relation to a particular site, or alternatively to force a decision between competing local descent groups on some unspecified basis when reach was found to have the specified characteristics in relation to a particular site.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: referred to
balance of the Malak Malak contentions involve a more immediate attack upon factual findings of the Committee adopted by the NLC, including in some respects adopting the 'no evidence' ground of review available under s 5(1)(h) of the ADJR Act. In approaching these grounds, I have borne in mind the explanation of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 358-359 as to the interaction of subs 5(1)(e), (f) and (h) of the ADJR Act. I have also borne in mind that the High Court said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 39-41 about the scope of the grounds of review under subs 5(1)(e) and (2)(a) and (b) of the ADJR Act.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: referred to
balance of the Malak Malak contentions involve a more immediate attack upon factual findings of the Committee adopted by the NLC, including in some respects adopting the 'no evidence' ground of review available under s 5(1)(h) of the ADJR Act. In approaching these grounds, I have borne in mind the explanation of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 358-359 as to the interaction of subs 5(1)(e), (f) and (h) of the ADJR Act. I have also borne in mind that the High Court said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 39-41 about the scope of the grounds of review under subs 5(1)(e) and (2)(a) and (b) of the ADJR Act.
Case: Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222
Outcome: cited
respect of the site Jigirij, I am not persuaded that the Committee's findings involve reviewable error under the ADJR Act. I think there was evidence which could rationally support its conclusions. It had the benefit of seeing and hearing all the evidence, in particular the evidence of Mr Storer taken at the site. It had regard to the evidence before Justice Toohey and the findings in the Toohey Report. It is not shown to have misapprehended any evidence, or to have attributed to it a significance which it was not rationally capable of bearing. It is not my function to reconsider all the relevant evidence on a topic to see if I would have come to a different view of the facts: see per Gleeson CJ in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at [26] . It is my function to determine, in respect of contentions such as those referred to above, whether the Committee erred in a way which s 5(1) of the ADJR Act identifies as reviewable error. In my judgment, it did not. The further contentions attacked the factual findings of the Committee, adopted by the NLC, that the Kamu have common spiritual affiliations to the sites Jebenyi, Ngulukmoenet and Kabamal, the Mt Hayward area in particular Wani-Alawun or Ngalyuwuy, or Jigirij. Again, the parties' submissions have referred to the paucity (in the case of the Malak Malak) or the adequacy (in the case of the Kamu) of the evidence available to support the Committee's findings as well as evidence from Malak Malak persons about the relationship of the Malak Malak to those sites. In some instances, the Malak Malak evidence was not referred to by the Committee in its reasons, although of course (with the exception of the sites in respect of which only the Kamu were found to have common spiritual affiliations) the Committee concluded that they were traditional Aboriginal owners in respect of those sites.
Case: Cropper v Smith (1884) 26 Ch D 700
Outcome: cited
Perusal of the original Defence supported the respondents' claim that they conceded liability inadvertently: compare Defence, par 8. Bearing in mind the accepted principles, the respondents should have leave to file an Amended Defence, as counsel for the applicants properly conceded at the hearing: see Cropper v Smith (1884) 26 Ch D 700 at 710 per Bowen LJ; Queensland v JL Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146 at 152 153 per Dawson, Gaudron and McHugh JJ; and Johnston v Vintage Developments Pty Limited [2006] FCAFC 171 at [23] per Tamberlin, Jacobson and Rares JJ. If the respondents were granted the leave they sought, no injustice would be done the applicants that could not be remedied by an award of costs in their favour.
Case: Johnston v Vintage Developments Pty Limited [2006] FCAFC 171
Outcome: cited
Perusal of the original Defence supported the respondents' claim that they conceded liability inadvertently: compare Defence, par 8. Bearing in mind the accepted principles, the respondents should have leave to file an Amended Defence, as counsel for the applicants properly conceded at the hearing: see Cropper v Smith (1884) 26 Ch D 700 at 710 per Bowen LJ; Queensland v JL Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146 at 152 153 per Dawson, Gaudron and McHugh JJ; and Johnston v Vintage Developments Pty Limited [2006] FCAFC 171 at [23] per Tamberlin, Jacobson and Rares JJ. If the respondents were granted the leave they sought, no injustice would be done the applicants that could not be remedied by an award of costs in their favour.
Case: Queensland v JL Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: cited
Perusal of the original Defence supported the respondents' claim that they conceded liability inadvertently: compare Defence, par 8. Bearing in mind the accepted principles, the respondents should have leave to file an Amended Defence, as counsel for the applicants properly conceded at the hearing: see Cropper v Smith (1884) 26 Ch D 700 at 710 per Bowen LJ; Queensland v JL Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146 at 152 153 per Dawson, Gaudron and McHugh JJ; and Johnston v Vintage Developments Pty Limited [2006] FCAFC 171 at [23] per Tamberlin, Jacobson and Rares JJ. If the respondents were granted the leave they sought, no injustice would be done the applicants that could not be remedied by an award of costs in their favour.
Case: Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
By enacting s 31A , Parliament intended "to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-92 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130": see White Industries Aust Pty Ltd v Commissioner of Taxation [2007] FCA 511 at [54] per Lindgren J. Judges have differed, however, about the extent to which the provision achieves this end, but these differences probably do not much matter. The key is to address the statutory question. That is, under s 31A , in order to grant summary judgment, I must be satisfied that the respondents have no reasonable prospect of success in defending the infringement claim. As s 31A(3) makes clear, this does not mean that I must be satisfied that their defence is hopeless or bound to fail.