Case: LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215 , 
Outcome: cited
Vawdrey submitted that the Krueger Drawings were not sufficiently original because of the alleged pre-existence of the Vawdrey-type lock. Vawdrey's evidence of the existence of the "Vawdrey-type lock" included two engineering drawings and the job sheet referred to earlier: see [101]. When the lock came into existence is in dispute. However, it is unnecessary to resolve that dispute. Even if the two engineering drawings relied upon by Vawdrey were created in 1995, the Krueger Drawings are still original. As I have said earlier, it is the originality of the form of expression rather than originality of the concept of sliding side posts with fixed gates attached that is required for copyright protection. Even assuming the concept were not novel in itself, novelty is not a requirement for copyright protection. What is relevant is that the Krueger Drawings represent an independent application by Hunt of his judgment, skill and labour and portray an original, distinctive expression of the concept to that of the Vawdrey drawings of the Vawdrey-type lock (which in any event do not even convey the same concept, as noted in [101] above): see LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215. The Krueger Drawings are original. 129 For infringement of copyright, the infringing act must be done in relation to a substantial part of the work (ss 14(1)(a) and (b) of the Act), and the infringing item must be objectively similar to the original work: Francis Day &amp; Hunter Ltd v Bron [1963] Ch 587 at 614 per Willmer LJ; SW Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 per Gibbs CJ. Whether assessed by visual comparison or otherwise, substantial reproduction "depends much more on the quality than on the quantity" of what is alleged to have been copied: Ladbroke at 469 per Reid LJ; LED Builders . 131 Krueger's claim for infringement of copyright in the Krueger Drawings, which do contain a distinct expression of the concept contained in the Krueger Sketch, does not fail. For infringement of copyright, there must be a degree of objective similarity and there must also be some causal connection between the work in which the copyright subsists and the allegedly infringing work: Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71 at [124] ; Francis, Day &amp; Hunter at 614; SW Hart at 472 per Gibbs CJ. Although inferences from facts can be drawn to substantiate a causal connection (see eg Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 , 387; LED Builders at 225), there must still be established facts from which to infer that the allegedly infringing party had access to the copyright material. 132 Here, the facts established by the objective evidence provide a basis for inferring that Vawdrey had indirect access to the substance of the Krueger Drawings as a result of disclosure by Camerons: see [70] [78] above. Particularly relevant is my conclusion that shortly after winning the Tender, Camerons requested that Vawdrey increase the size of the gates in its design and change the number of posts from six to seven in order to conform to the design shown in the Krueger Subsequent Drawing included in the Tender proposal. Those facts put this case on all fours with LED Builders , where the court found (at 225) indirect copying based on the giving of oral instructions by an intermediary to bring the infringing design plans into line with the copyright holder's. I am satisfied that the same thing occurred here. 133 The next question is to determine whether Vawdrey copied a substantial part of the Krueger Drawings? 134 When one compares the Vawdrey Engineering Drawings (being the drawings from which the trailers were constructed) with the Subsequent Krueger Drawings, that question must be answered "yes". However, in answering that question, it is necessary to exclude from that analysis those elements that are unprotected by copyright. There was nothing in the unprotected concept that dictated the number of posts or the size of the gates. Here both the Vawdrey Engineering Drawings and the Subsequent Krueger Drawings featured seven posts with gates attached of nearly identical size and shape. Vawdrey submitted that these similarities were an inevitable result of the fixed parameters of a 48ft trailer. I reject that submission. The content of the First Vawdrey Drawing (see Annexure 6) demonstrates the error in that submission. In that drawing, the same concept was expressed using only six sliding posts with gates that were smaller and in the shape of a hoop. In addition, Krueger's expert, Dr Hart, gave evidence that the Krueger Concept could be expressed in numerous ways. In light of this evidence, I am satisfied that there were multiple ways in which the same concept was capable of expression but the Vawdrey Engineering Drawings used substantially the same form of expression as the Subsequent Krueger Drawings.