mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Inform Design and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd [2008] FCA 912
Outcome: cited
to subconscious copying, Willmer LJ noted in Francis Day &amp; Hunter at p 613 that, "if subconscious copying is to be found, there must be proof (or at least a strong inference) of de facto familiarity with the work alleged to be copied". In the absence of any direct evidence of use of or access to the Jennings plan in suit, the causal link can be established by inference. The greater the degree of objective similarity between the two plans, the more likely it is that an inference of actual use might be drawn ( S W Hart &amp; Co (supra) per Gibbs CJ at 472; Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309 per Heerey, Sundberg and Finkelstein JJ). Exact copying is rarely the conduct in controversy. Normally an inference is sought to be drawn in the face of quantitative features of the plan in suit, present in the plan under challenge, or by correspondence with a substantial part qualitatively of the plaintiff's plan, or both. If the contention is that a substantial part of the plan in suit has been taken, a question of "fact and degree" arises ( Inform Design and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd [2008] FCA 912 per Weinberg J at [71]) and 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" ( Inform Design , per Weinberg J at [71] [emphasis added]). An allegation of substantial reproduction of the work by reproduction of a substantial part will be made out if what is taken is an essential or material part of the work in suit. The phrase "substantial part" refers to the quality of that taken and the importance it bears to the work as a whole ( Tamawood v Henley Arch at [50], [52] and [54]; Dixon Investments Pty Ltd v Hall 18 IPR 490 at 494 per Lockhart, Spender and Ryan JJ; Autodesk Inc. v Dyason [No. 2] [1993] HCA 6 ; (1993) 176 CLR 300 per Mason CJ at 305). It may be that a particular orientation and layout of rooms which draws a user through a structure in a particular way is an essential or material part of a plan ( Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 161 ALR 503 at [74] ). Essentiality is a question of fact and degree.
Case: Dixon Investments Pty Ltd v Hall 18 IPR 490
Outcome: cited
to subconscious copying, Willmer LJ noted in Francis Day &amp; Hunter at p 613 that, "if subconscious copying is to be found, there must be proof (or at least a strong inference) of de facto familiarity with the work alleged to be copied". In the absence of any direct evidence of use of or access to the Jennings plan in suit, the causal link can be established by inference. The greater the degree of objective similarity between the two plans, the more likely it is that an inference of actual use might be drawn ( S W Hart &amp; Co (supra) per Gibbs CJ at 472; Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309 per Heerey, Sundberg and Finkelstein JJ). Exact copying is rarely the conduct in controversy. Normally an inference is sought to be drawn in the face of quantitative features of the plan in suit, present in the plan under challenge, or by correspondence with a substantial part qualitatively of the plaintiff's plan, or both. If the contention is that a substantial part of the plan in suit has been taken, a question of "fact and degree" arises ( Inform Design and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd [2008] FCA 912 per Weinberg J at [71]) and 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" ( Inform Design , per Weinberg J at [71] [emphasis added]). An allegation of substantial reproduction of the work by reproduction of a substantial part will be made out if what is taken is an essential or material part of the work in suit. The phrase "substantial part" refers to the quality of that taken and the importance it bears to the work as a whole ( Tamawood v Henley Arch at [50], [52] and [54]; Dixon Investments Pty Ltd v Hall 18 IPR 490 at 494 per Lockhart, Spender and Ryan JJ; Autodesk Inc. v Dyason [No. 2] [1993] HCA 6 ; (1993) 176 CLR 300 per Mason CJ at 305). It may be that a particular orientation and layout of rooms which draws a user through a structure in a particular way is an essential or material part of a plan ( Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 161 ALR 503 at [74] ). Essentiality is a question of fact and degree.
Case: Autodesk Inc. v Dyason [No. 2] [1993] HCA 6 ; (1993) 176 CLR 300
Outcome: cited
to subconscious copying, Willmer LJ noted in Francis Day &amp; Hunter at p 613 that, "if subconscious copying is to be found, there must be proof (or at least a strong inference) of de facto familiarity with the work alleged to be copied". In the absence of any direct evidence of use of or access to the Jennings plan in suit, the causal link can be established by inference. The greater the degree of objective similarity between the two plans, the more likely it is that an inference of actual use might be drawn ( S W Hart &amp; Co (supra) per Gibbs CJ at 472; Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309 per Heerey, Sundberg and Finkelstein JJ). Exact copying is rarely the conduct in controversy. Normally an inference is sought to be drawn in the face of quantitative features of the plan in suit, present in the plan under challenge, or by correspondence with a substantial part qualitatively of the plaintiff's plan, or both. If the contention is that a substantial part of the plan in suit has been taken, a question of "fact and degree" arises ( Inform Design and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd [2008] FCA 912 per Weinberg J at [71]) and 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" ( Inform Design , per Weinberg J at [71] [emphasis added]). An allegation of substantial reproduction of the work by reproduction of a substantial part will be made out if what is taken is an essential or material part of the work in suit. The phrase "substantial part" refers to the quality of that taken and the importance it bears to the work as a whole ( Tamawood v Henley Arch at [50], [52] and [54]; Dixon Investments Pty Ltd v Hall 18 IPR 490 at 494 per Lockhart, Spender and Ryan JJ; Autodesk Inc. v Dyason [No. 2] [1993] HCA 6 ; (1993) 176 CLR 300 per Mason CJ at 305). It may be that a particular orientation and layout of rooms which draws a user through a structure in a particular way is an essential or material part of a plan ( Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 161 ALR 503 at [74] ). Essentiality is a question of fact and degree.
Case: Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 161 ALR 503
Outcome: cited
to subconscious copying, Willmer LJ noted in Francis Day &amp; Hunter at p 613 that, "if subconscious copying is to be found, there must be proof (or at least a strong inference) of de facto familiarity with the work alleged to be copied". In the absence of any direct evidence of use of or access to the Jennings plan in suit, the causal link can be established by inference. The greater the degree of objective similarity between the two plans, the more likely it is that an inference of actual use might be drawn ( S W Hart &amp; Co (supra) per Gibbs CJ at 472; Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309 per Heerey, Sundberg and Finkelstein JJ). Exact copying is rarely the conduct in controversy. Normally an inference is sought to be drawn in the face of quantitative features of the plan in suit, present in the plan under challenge, or by correspondence with a substantial part qualitatively of the plaintiff's plan, or both. If the contention is that a substantial part of the plan in suit has been taken, a question of "fact and degree" arises ( Inform Design and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd [2008] FCA 912 per Weinberg J at [71]) and 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" ( Inform Design , per Weinberg J at [71] [emphasis added]). An allegation of substantial reproduction of the work by reproduction of a substantial part will be made out if what is taken is an essential or material part of the work in suit. The phrase "substantial part" refers to the quality of that taken and the importance it bears to the work as a whole ( Tamawood v Henley Arch at [50], [52] and [54]; Dixon Investments Pty Ltd v Hall 18 IPR 490 at 494 per Lockhart, Spender and Ryan JJ; Autodesk Inc. v Dyason [No. 2] [1993] HCA 6 ; (1993) 176 CLR 300 per Mason CJ at 305). It may be that a particular orientation and layout of rooms which draws a user through a structure in a particular way is an essential or material part of a plan ( Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 161 ALR 503 at [74] ). Essentiality is a question of fact and degree.
Case: Microsoft Corporation v Atifo Pty Ltd (1997) 38 IPR 643
Outcome: cited
an award of damages pursuant to s 115(2) of the Copyright Act might in an appropriate case be the measure of the depreciation in the value of the exclusive bundle of rights comprising the copyright, as a chose in action ( Sutherland Publishing Co. Ltd v Caxton Publishing Co. Ltd [1936] 1 Ch. 323 per Lord Wright MR; Microsoft Corporation v Atifo Pty Ltd (1997) 38 IPR 643) , it is not the right measure in a case such as this ( Autodesk Australia Pty Ltd v Cheung (1990) 94 ALR 472 at 475 per Wilcox J; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales (1975) 6 ALR 445 , Bowen CJ at Eq 446). There is, understandably, no evidence of a discounted cash flow valuation of the copyright as a capital asset nor, equally understandably, any evidence of any diminution, by reason of the infringement, in the capacity of Jennings to derive revenue by exploiting the copyright work, that is, by using the plan and constructing houses representing a three-dimensional reproduction of the plan, for clients. In this case, the respondents built a single house as their residential dwelling. They are not project home builders and they are not in the business of repetitious infringing conduct. Since there is no demonstrated impact on the exploitation revenues Jennings derives from the use of the Cortona 290 plan, there is very likely to be no corresponding impact on the value of the copyright as an incorporeal right.
Case: Australasian Performing Rights Association v Grebo Trading Co. Pty Ltd (1978) 23 ACTR 30
Outcome: cited
the formulation of Lord Wright in Sutherland has been described as "no more than a convenient label for the various ways of assessing damages which are available in any particular case" ( Australasian Performing Rights Association v Grebo Trading Co. Pty Ltd (1978) 23 ACTR 30 per Blackburn CJ at 31) and the question to be answered is, what loss has Jennings suffered as a result of the infringement of its copyright? ( Interfirm at 446) As to the general principles concerning the assessment of damages for breach of copyright, see Autodesk v Cheung (1990) 94 ALR 472 at 474 477; Amalgamated Mining Services Pty Ltd v Warman International Ltd [1992] FCA 542 ; (1992) 111 ALR 269 at 285; Microsoft Corporation v TYN Electronics Pty Ltd (in liq) (2005) 63 IPR 137 and Eagle Rock Entertainment Ltd &amp; Anor v Caisley (2006) 66 IPR 554. Jennings contends that it does not licence its copyright to enable third party construction to occur. It keeps its copyright in a Jennings safe harbour and uses it solely in its own construction activity. Therefore, it is said, Jennings ought not to be treated in an analogous position to an architect who might, by reason of the nature of the professional work an architect undertakes, be subject to an implied licence of the copyright in a work produced in connection with particular projects. Nor, it is said, should the hypothetical "construct" of a notional willing licensor and licensee be adopted as the framework for determining a surrogate measure of damages by reference to a licence fee. The pleading claims damages on the alternative bases of either a fee for use of the plan or lost profits in the construction of the Bogdan home. Presumably, the pleading does so in order to preserve alternative possible formulations of a remedy in damages in respect of proven infringing conduct. However, it is clear that the letter of demand from Jennings dated 19 November 2003 made a claim for a fee for use of the plan for an amount which remains the amount claimed as a fee for use in the amended pleading.
Case: Amalgamated Mining Services Pty Ltd v Warman International Ltd [1992] FCA 542 ; (1992) 111 ALR 269 at 285
Outcome: cited
the formulation of Lord Wright in Sutherland has been described as "no more than a convenient label for the various ways of assessing damages which are available in any particular case" ( Australasian Performing Rights Association v Grebo Trading Co. Pty Ltd (1978) 23 ACTR 30 per Blackburn CJ at 31) and the question to be answered is, what loss has Jennings suffered as a result of the infringement of its copyright? ( Interfirm at 446) As to the general principles concerning the assessment of damages for breach of copyright, see Autodesk v Cheung (1990) 94 ALR 472 at 474 477; Amalgamated Mining Services Pty Ltd v Warman International Ltd [1992] FCA 542 ; (1992) 111 ALR 269 at 285; Microsoft Corporation v TYN Electronics Pty Ltd (in liq) (2005) 63 IPR 137 and Eagle Rock Entertainment Ltd &amp; Anor v Caisley (2006) 66 IPR 554. Jennings contends that it does not licence its copyright to enable third party construction to occur. It keeps its copyright in a Jennings safe harbour and uses it solely in its own construction activity. Therefore, it is said, Jennings ought not to be treated in an analogous position to an architect who might, by reason of the nature of the professional work an architect undertakes, be subject to an implied licence of the copyright in a work produced in connection with particular projects. Nor, it is said, should the hypothetical "construct" of a notional willing licensor and licensee be adopted as the framework for determining a surrogate measure of damages by reference to a licence fee. The pleading claims damages on the alternative bases of either a fee for use of the plan or lost profits in the construction of the Bogdan home. Presumably, the pleading does so in order to preserve alternative possible formulations of a remedy in damages in respect of proven infringing conduct. However, it is clear that the letter of demand from Jennings dated 19 November 2003 made a claim for a fee for use of the plan for an amount which remains the amount claimed as a fee for use in the amended pleading.
Case: Microsoft Corporation v TYN Electronics Pty Ltd (in liq) (2005) 63 IPR 137
Outcome: cited
the formulation of Lord Wright in Sutherland has been described as "no more than a convenient label for the various ways of assessing damages which are available in any particular case" ( Australasian Performing Rights Association v Grebo Trading Co. Pty Ltd (1978) 23 ACTR 30 per Blackburn CJ at 31) and the question to be answered is, what loss has Jennings suffered as a result of the infringement of its copyright? ( Interfirm at 446) As to the general principles concerning the assessment of damages for breach of copyright, see Autodesk v Cheung (1990) 94 ALR 472 at 474 477; Amalgamated Mining Services Pty Ltd v Warman International Ltd [1992] FCA 542 ; (1992) 111 ALR 269 at 285; Microsoft Corporation v TYN Electronics Pty Ltd (in liq) (2005) 63 IPR 137 and Eagle Rock Entertainment Ltd &amp; Anor v Caisley (2006) 66 IPR 554. Jennings contends that it does not licence its copyright to enable third party construction to occur. It keeps its copyright in a Jennings safe harbour and uses it solely in its own construction activity. Therefore, it is said, Jennings ought not to be treated in an analogous position to an architect who might, by reason of the nature of the professional work an architect undertakes, be subject to an implied licence of the copyright in a work produced in connection with particular projects. Nor, it is said, should the hypothetical "construct" of a notional willing licensor and licensee be adopted as the framework for determining a surrogate measure of damages by reference to a licence fee. The pleading claims damages on the alternative bases of either a fee for use of the plan or lost profits in the construction of the Bogdan home. Presumably, the pleading does so in order to preserve alternative possible formulations of a remedy in damages in respect of proven infringing conduct. However, it is clear that the letter of demand from Jennings dated 19 November 2003 made a claim for a fee for use of the plan for an amount which remains the amount claimed as a fee for use in the amended pleading.
Case: Columbia Pictures Industries Inc. &amp; Anor v Luckins (1996) 34 IPR 504
Outcome: cited
Autodesk v Cheung , Wilcox J did not apply the licence fee approach to the assessment of damages because his Honour could not draw the inference, on the facts of that case, that the respondent, presented with a choice between paying a licence fee or not using the work, would have paid the licence fee. It was simply not a likely event. Similarly, Tamberlin J took the view on the facts before his Honour in Columbia Pictures Industries Inc. &amp; Anor v Luckins (1996) 34 IPR 504 at 509 that a licence was unrealistic. His Honour observed at 509: In my view, the licence fee approach is not appropriate in a situation where it is clear that there never would have been a licence granted by the applicants because of the disruption such a licence would inflict on the applicants' basic strategic marketing timetable in Australia. In that case, Tamberlin J was addressing the assessment of damages arising out of the importation into Australia by the respondent of copies of films distributed on laser disks in the United States by Columbia Pictures . In that context, Tamberlin J rejected the utility of the licence fee approach. A similar view was taken in Eagle Rock v Caisley which concerned the assessment of damages arising out of the sale of DVD copies of an unauthorised recording of a live performance by Eric Clapton and his band. In Eagle Rock at [12], Tamberlin J said this: ... I do not consider that Eagle would, if requested, have granted a licence to Caisley or that Caisley would have paid the licence fee if he was given the choice between so doing or not using the copyright work. The two parties were in direct competition. The evidence in this case does not suggest any element of a competitive threat by the respondent, Mr Bogdan, to the activities of Jennings nor is there any suggestion of any disruption to the applicant's activities manifest in the class of case reflected in the decisions in Autodesk v Cheung , Columbia Pictures v Luckins and Eagle Rock v Caisley . Equally clearly, the element of disruption was the factual foundation upon which their Honours came to the conclusion that the applicants in each case would not have granted a licence. It is clear in this case that had a licence been sought by the respondents from Jennings it would either not have been granted or alternatively a licence fee of $20,000.00 might have been nominated by Jennings. That possibility is at least consistent with the letter of demand and the pleading. Nevertheless, had Jennings sought a licence fee from the respondents of $20,000.00, plainly enough, the respondents would not have taken up that licence.
Case: Fenning Film Service Limited v Wolverhampton, Walsall and District Cinemas Limited [1914] 3 KB 1171
Outcome: cited
follows that applying a licence fee in the present circumstances is an inappropriate measure of damages. Thus, damages should be assessed on the footing that damages are, in this case, at large ( Fenning Film Service Limited v Wolverhampton, Walsall and District Cinemas Limited [1914] 3 KB 1171 ; Gaunt v Hille [2007] FCA 2017 at 75 - 79).
Case: Gaunt v Hille [2007] FCA 2017
Outcome: cited
follows that applying a licence fee in the present circumstances is an inappropriate measure of damages. Thus, damages should be assessed on the footing that damages are, in this case, at large ( Fenning Film Service Limited v Wolverhampton, Walsall and District Cinemas Limited [1914] 3 KB 1171 ; Gaunt v Hille [2007] FCA 2017 at 75 - 79).
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Katisat [2005] FCA 1908
Outcome: cited
The Tribunal did not reject the authenticity of the letters. It accepted them at face value. In those circumstances, it is hard to see why it would have thought it necessary or desirable to take evidence from the authors of the letters or form the view that further inquiries would provide material centrally relevant to the decision to be made (cf Prasad v Minister for Immigration &amp; Ethnic Affairs (1985) 6 FCR 155). If there were inconsistencies between the apparent safety of those authors and the appellant's claims, as was put to the appellant by the Tribunal, that was a matter for the appellant to clarify. It was for the appellant to present his case. In any event, the Tribunal was under no duty to summons the authors of the letters or to inquire into their evidence ( Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ; Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Katisat [2005] FCA 1908 at [38] - [67] per Bennett J).
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: cited
The Tribunal did not reject the authenticity of the letters. It accepted them at face value. In those circumstances, it is hard to see why it would have thought it necessary or desirable to take evidence from the authors of the letters or form the view that further inquiries would provide material centrally relevant to the decision to be made (cf Prasad v Minister for Immigration &amp; Ethnic Affairs (1985) 6 FCR 155). If there were inconsistencies between the apparent safety of those authors and the appellant's claims, as was put to the appellant by the Tribunal, that was a matter for the appellant to clarify. It was for the appellant to present his case. In any event, the Tribunal was under no duty to summons the authors of the letters or to inquire into their evidence ( Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ; Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Katisat [2005] FCA 1908 at [38] - [67] per Bennett J).
Case: Prasad v Minister for Immigration &amp; Ethnic Affairs (1985) 6 FCR 155
Outcome: cited
The Tribunal did not reject the authenticity of the letters. It accepted them at face value. In those circumstances, it is hard to see why it would have thought it necessary or desirable to take evidence from the authors of the letters or form the view that further inquiries would provide material centrally relevant to the decision to be made (cf Prasad v Minister for Immigration &amp; Ethnic Affairs (1985) 6 FCR 155). If there were inconsistencies between the apparent safety of those authors and the appellant's claims, as was put to the appellant by the Tribunal, that was a matter for the appellant to clarify. It was for the appellant to present his case. In any event, the Tribunal was under no duty to summons the authors of the letters or to inquire into their evidence ( Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ; Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Katisat [2005] FCA 1908 at [38] - [67] per Bennett J).