mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273
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) 25 Reference to the essential or material features mirrors the language in Powerflex. The passages in both Powerflex and Tamawood are firmly grounded in Ladbroke . In that case, Lord Pearce stated in dictum: 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. (Emphasis added)
Case: LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215
Outcome: applied
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] . 76 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. 82 My personal inspection of the alfresco quadrant in the Prada 35 home demonstrated a close resemblance to that in the Seattle 31 plan: Lend Lease ; LED Builders Pty Ltd . The Prada 35 home also closely resembles the Memphis 33 plan. Accordingly, there is sufficient objective similarity between the two works so as to satisfy the relevant limb of the infringement test espoused in SW Hart . Functional and common stock considerations have been assessed earlier in the judgment, where I compare the Seattle 31 plan and the Prada 35 plan. My findings there in favour of the applicants are similarly found with respect to the Seattle 31 plan and the Prada 35 home in three dimensional form.
Case: Lend Lease Homes Pty Ltd v Warrigal Homes Pty Ltd [1970] 3 NSWR 265
Outcome: applied
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. 77 In Lend Lease , the Court reached a conclusion of objective similarity by looking at photographs of the three dimensional structures and comparing them to the plans. However, a visual inspection is perhaps a more telling means of determining this question. I certainly found my inspections in the present case to be most helpful in my analysis. Such inspections occurred in Henley Arch Pty Ltd 41 IPR 443. 78 In this regard, it is important, when considering resemblance from two to three dimensions, to take account of all the matters appearing on the two dimensional floor plans, including the relationship of the rooms and spaces to each other and their approximate dimensions, as indicated in the plan. 79 On the third day of the trial, I inspected a range of properties that were the subject of evidence in two-dimensional form. As to the Prada 35, my impression of a light and spacious interior was derived not from any one particular feature but from the combination of features. The most distinctive features of the Prada 35 home comprised a central hallway leading into a central hub that incorporated: &#8226; the kitchen/dining area (note that the dining room in the Prada 35 is equivalent to the meals room in the Seattle 31); &#8226; the family/living area; &#8226; the alfresco; and &#8226; the rumpus room all under a single ('hip') roof-line. 82 My personal inspection of the alfresco quadrant in the Prada 35 home demonstrated a close resemblance to that in the Seattle 31 plan: Lend Lease ; LED Builders Pty Ltd . The Prada 35 home also closely resembles the Memphis 33 plan. Accordingly, there is sufficient objective similarity between the two works so as to satisfy the relevant limb of the infringement test espoused in SW Hart . Functional and common stock considerations have been assessed earlier in the judgment, where I compare the Seattle 31 plan and the Prada 35 plan. My findings there in favour of the applicants are similarly found with respect to the Seattle 31 plan and the Prada 35 home in three dimensional form.
Case: Milpurrurru &amp; Ors v Indofurn Pty Ltd (1994) 30 IPR 209
Outcome: cited
The substantial part inquiry "imputes questions of fact and degree": Tamawood at [51]. What is important is the quality of the part taken, rather than its quantity: SW Hart at 474-5; see also Tamawood at [50] and Milpurrurru &amp; Ors v Indofurn Pty Ltd (1994) 30 IPR 209 at 230 where the Court, in considering the qualitative worth of a part of Aboriginal artwork reproduced on carpets, stated: Although as a proportion either of the total artwork, or the total carpet, the area of copied material in comparison with the whole is not great, in a qualitative sense the copying is substantial. The pattern taken from the artwork constitutes the striking feature of the carpet. And again a predominant consideration is the animus furandi of those responsible for the design....
Case: Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 34 IPR 53
Outcome: cited
Quantitatively, also, the alfresco quadrant is substantial: it covers about one third of the floor area of the home: see Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 34 IPR 53, where the Court looked at both qualitative and quantitative aspects. While quantitative aspects of the copyright works are of less importance to that of qualitative aspects, I will not disaggregate the fact that the alfresco quadrant constitutes a significant portion of the floor space of the Seattle 31 design. On the contrary, the fact that it covers about one third of the area gives weight to its significance. 42 It follows that I hold that the alfresco quadrant to be a substantial part of the Copyright Works.
Case: Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172
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.
Case: Pacific Gaming Pty Ltd v Aristocrat Leisure Industries Pty Ltd [2001] FCA 1636 ; (2001) 116 FCR 448
Outcome: applied
Copying is a question of fact: Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529 at 531. Generally, access to the copyright works combined with the sufficient objective similarities between the copyright works and the alleged infringing works are relevant. It enables the Court to conclude that independent creation is unlikely and that actual copying has occurred, as I find below: Clarendon at [27]; Pacific Gaming Pty Ltd v Aristocrat Leisure Industries Pty Ltd [2001] FCA 1636 ; (2001) 116 FCR 448 at [19] . 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: Root Quality Pty Ltd v Root Control Technologies Pty Ltd (2000) 177 ALR 231
Outcome: referred to
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: Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529
Outcome: cited
Copying is a question of fact: Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529 at 531. Generally, access to the copyright works combined with the sufficient objective similarities between the copyright works and the alleged infringing works are relevant. It enables the Court to conclude that independent creation is unlikely and that actual copying has occurred, as I find below: Clarendon at [27]; Pacific Gaming Pty Ltd v Aristocrat Leisure Industries Pty Ltd [2001] FCA 1636 ; (2001) 116 FCR 448 at [19] .
Case: S W Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466
Outcome: applied
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: TCN Channel Nine Pty Ltd v Network Ten Pty Ltd [2001] FCA 108 ; (2001) 184 ALR 1
Outcome: cited
Third, key features are clearly important and distinct particularly when features of the designs are viewed in collocation and as a whole. The distinctiveness of the Copyright Works also goes to the consideration of the quality of the works. While novelty is not a consideration of copyright, recent cases such as Tamawood suggest that distinctiveness and that which is "essential" to the copyright works are important considerations in cases where substantial part is at issue: see Tamawood at [51]-[54] and particularly at [89]. Cases such as TCN Channel Nine Pty Ltd v Network Ten Pty Ltd [2001] FCA 108 ; (2001) 184 ALR 1 also stress the need to look at the essential features. See also McCutcheon's discussion in the article Property in Literary Characters [2007] EIPR 143.
Case: Winstone v Wurlitzer Automatic Phonograph Co of Australia Pty Ltd [1946] VLR 338
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.
Case: Lynch v Buckley Sawmills Pty Ltd [1984] FCA 306 ; (1984) 3 FCR 503
Outcome: applied
The foregoing brief survey of provisions in the Workplace Relations Act relevant to the making and coming into operation of the Collective Agreement serves to remind that such an agreement is not a mere matter of private contract. More particularly, given that the acknowledged breaches arise against the background of action taken by the University in response to unforseen, and, it seems, unforeseeable events having profound financial ramifications, it makes particularly apposite the following observations made by Keely J in Lynch v Buckley Sawmills Pty Ltd [1984] FCA 306 ; (1984) 3 FCR 503 at 508: "In this connection it is important that the respondent and other employers bound by the award or by the other awards under the Act understand the importance of complying with an award and it follows that any decision taken by them which is regarded as affecting their obligations to comply with particular provisions of an award or the award generally should only be taken after careful consideration. They must not be left under the impression that in times of financial difficulty they can breach an award made under the Act either with impunity or in the belief that no substantial penalty will be imposed in respect of a breach found by a court to have been committed."
Case: Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231
Outcome: cited
Neither the Union nor the University submitted that there were any directly applicable comparative sentences, a position confirmed by my own researches. It is true, as Branson J noted in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231, at 232 in respect of a materially similar earlier penalty regime, that the Workplace Relations Act does not give any explicit guidance as to the circumstances in which an order imposing penalty will be appropriate or as to the circumstances in which a penalty of or near the maximum or alternatively of a lesser amount will be warranted. That does not mean that the fixing of penalty is at large, unrestrained by evident statutory purposes or the circumstances in which a breach occurred and its consequences. In the context of this case, the penalty must reflect and be able to be seen to reflect considerations which I have emphasised sufficiently high to serve as a general reminder about the obligation to adhere to a collective agreement yet acknowledge conflated rather than ignored consultation which seems to have been the result of a misunderstanding as to the precise nature of the consultation obligations assumed by the University under the Collective Agreement, a timely acceptance of the alleged breaches and an absence on the part of the University of any past breaches of the Workplace Relations Act . It must reflect the circumstance that the consequence of the breaches was the loss of a chance, the chance to be heard and to influence. It is not possible to conclude on the material before me that the fate of those fixed term appointees affected would have been any different had all of the required consultation been undertaken. 47 I find that the University breached the following provisions of the Collective Agreement: (a) clause 22.2, between 1 May and on or about 15 May 2007, by failing to consult, as provided for by that provision, prior to making its decision on or about 15 May 2007. (b) clause 22.3, between 1 May and 15 May 2007, as a consequence of the breach of clause 22.2; (c) clause 24, between 1 May and on or about 15 May 2007 by failing to undertake the consultations required by that provision; (d) clause 22.3 on 29 May 2007 by failing to consult in the way required by that provision. 48 There was also some debate before me as to whether declarations ought to be made in respect of these breaches. So far as I can tell from previous proceedings for civil penalties in industrial cases, the practice of the Court seems to be not to make such declarations in the formal orders pronounced by the Court. I decline in this case to make declarations but rather, as seems to be the practice, will make orders imposing penalties. Those penalties will be as follows: (a) for a breach of cl 22.2 of the Collective Agreement: a penalty of $6,600; (b) for the breaches of cl 22.3: a penalty of $200; (c) for the breach of cl 24: a penalty of $200.
Case: L Vogel &amp; Sons Pty Ltd v Anderson, Minister of State for Customs and Excise [1968] HCA 90 ; (1968) 120 CLR 157
Outcome: cited
In fixing penalties in this way I have adopted an approach which commended itself to the High Court in the original jurisdiction in customs prosecutions (then regarded as suits for the recovery of a pecuniary penalty) in circumstances where what was, in essence, a single transaction gave rise to what were strictly multiple offences. In that context it was regarded as material to consider that, "though the offences in each group were separate offences in law, they were substantially contemporaneous and connected" L Vogel &amp; Sons Pty Ltd v Anderson, Minister of State for Customs and Excise [1968] HCA 90 ; (1968) 120 CLR 157 , at 168; applied Murphy, Minister of State for Customs and Excise v H. F. Trading Co Pty Ltd (1971) 47 ALJR 198 , at 200. Here, though there is no fixed minimum penalty, it is necessary, in my opinion, that the separate breaches of cl 22.3 and cl 24 be penalised but that those penalties reflect their consequential, derivative or overlapping qualities relative to the breach of cl 22.2.
Case: Murphy, Minister of State for Customs and Excise v H. F. Trading Co Pty Ltd (1971) 47 ALJR 198
Outcome: cited
In fixing penalties in this way I have adopted an approach which commended itself to the High Court in the original jurisdiction in customs prosecutions (then regarded as suits for the recovery of a pecuniary penalty) in circumstances where what was, in essence, a single transaction gave rise to what were strictly multiple offences. In that context it was regarded as material to consider that, "though the offences in each group were separate offences in law, they were substantially contemporaneous and connected" L Vogel &amp; Sons Pty Ltd v Anderson, Minister of State for Customs and Excise [1968] HCA 90 ; (1968) 120 CLR 157 , at 168; applied Murphy, Minister of State for Customs and Excise v H. F. Trading Co Pty Ltd (1971) 47 ALJR 198 , at 200. Here, though there is no fixed minimum penalty, it is necessary, in my opinion, that the separate breaches of cl 22.3 and cl 24 be penalised but that those penalties reflect their consequential, derivative or overlapping qualities relative to the breach of cl 22.2. 51 I have considered whether some part of the total penalty ought not be ordered to be paid to the Union in light of what I have termed the gratuitous joinder of Professor Rickard. However, it seems to me that so to do would be wrong in principle as no part of the total penalty is referable to a penalty imposed in respect of a separate breach by Professor Rickard. The penalty proceeding did though exhibit a vice akin to that described by Taylor J in Scott v Geoghan &amp; Sons Pty Ltd (1969) 43 ALJR 243 , at 245 whose remarks were endorsed by Gibbs J (as his Honour then was) in Murphy, Minister of State for Customs and Excise v H. F. Trading Co Pty Ltd supra, at 200 the joinder of a multiplicity of charges arising out of the one transaction. The policy objectives served by a civil penalty proceeding under the Workplace Relations Act did not, in my respectful opinion, require the allegation of derivative, consequential or overlapping breaches. Of the total of the penalties imposed, I therefore propose to order that the sum of $6,600 be paid to the Union and the balance of $400 be paid to the Commonwealth of Australia pursuant to s 841(b) and 841 (a) respectively of the Workplace Relations Act .
Case: Finance Sector Union v Australia and New Zealand Banking Group Limited [2002] FCA 1035
Outcome: applied
There remains a question as to whether some or all of the total of the penalties imposed ought to be awarded to the Union as it has requested pursuant to a s 841(b) of the Workplace Relations Act . The University opposes the making of such an order. Again in this context it questions the purpose served by these proceedings in light of the outcome in the Commission and submits that I should conclude that the Union's purpose was solely to derive a financial "windfall" of the kind described by Finkelstein J in the CPSU v Telstra case. I reject that submission. I have already highlighted the separate public interest served by a civil penalty proceeding like the present and the recognition by the Parliament of an industrial organisation such as the Union as an appropriate party in the present circumstances to initiate such a proceeding. Further, there is long standing authority in this Court which draws attention to the role that a provision like s 814(b) has in the encouragement of a common informer. I respectfully agree with the following observation made by Wilcox J in Finance Sector Union v Australia and New Zealand Banking Group Limited [2002] FCA 1035 , at [16]: "In CPSU Finkelstein J suggested that such an order should not be made if it is likely to result in a "windfall to the organisation". I am not sure I agree with that; the rationale of the practice is that it tends to encourage a "common informer" to police the relevant legislation: see Vehicle Builders' Employees' Federation of Australia v General Motors-Holden Pty Ltd (1977) 32 FLR 100 at 113. That rationale is likely to be defeated if the common informer is not to be allowed to make a profit."