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Wednesday, August 06, 2008


Copyright Agency Limited v State of New South Wales [2008] HCA 35

Out now (appeal allowed, relevant orders set aside).

Notable quote...
[92] Finally, and importantly, a licence will only be implied when there is a necessity to do so. As stated by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:

"This notion of 'necessity' has been crucial in the modern cases in which the courts have implied for the first time a new term as a matter of law."

[93] Such necessity does not arise in the circumstances that the statutory licence scheme excepts the State from infringement, but does so on condition that terms for use are agreed or determined by the Tribunal (ss 183(1) and (5)). The Tribunal is experienced in determining what is fair as between a copyright owner and a user. It is possible, as ventured in the submissions by CAL, that some uses, such as the making of a "back-up" copy of the survey plans after registration, will not attract any remuneration.
Hmmm...I'm sure housemate Catherine will have a few things to say about this one. See Catherine's post about the earlier Full Federal Court decision here.

Update: Read analysis from Weatherall here.

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Anonymous Anonymous said:
Having watched the oral proceedings of the case, I think that the outcome is unsurprising.

The lawyer acting for CAL, David Catterns, dominated the proceedings:

The key exchange where he won Gummow J to his point of view is here:

GUMMOW J: But the implied licence that was pleaded against you by the State, was that an implied licence arising from any particular one-on-one dealing or an implied licence arising globally?

MR CATTERNS: Your Honour, arising globally, and that is a way we seek to distinguish it from the one-on-one deal of the engagement of an architect for reward. The submission and the holding of the Full Court, as we read it, is that it arises globally from surveyors lodging the plans or their clients lodging the plans, knowing, as it were, this system of registration, but also this, we say, comprehensive and full system of post-registration acts comprised in the copyright will take place.

GUMMOW J: Globally, but gratuitously.

MR CATTERNS: Yes, your Honour, yes. To put it shortly, our submission is implied licences arise in cases of necessity and so far they have tended to be in one-on-one situations, as your Honour puts it. We say here where there is both a comprehensive use by the alleged licensee, but more importantly, where there is a comprehensive statutory scheme, which we submit is the only way this can all work, hold together, then there is just no occasion for an implied licence.

Dr Matthew Rimmer
ANU College of Law
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