The Australian Approach

How does one go about determining fair remuneration for damages for infringement of copyright?

One of the important issues raised by the question goes to the very nature of the asset sought to be protected. It is intangible. It may have a trading history (in the form of licensing whether by private contract or on a compulsory basis (such as in the case of music)). It may have an esteemed value in the eyes of the author, but little to show by way of monetary value as such.

Ascribing value to copyright is one of the really vexed questions in addressing the significance of copyright in the economy generally, let alone determining an amount of general or additional damages to be awarded in the case of infringement. Typically, Australian accountants have not engaged effectively with properly identifying the value of copyright. They have resisted placing a value on copyright in balance sheets, ostensibly on the basis of not wanting to include valuations of assets which cannot be tested in an open market. This policy will need to be reviewed to reflect the rise in the intangibles economy. Absent guidance from accountants, there are significant issues for Courts and practitioners in determining the correct approach to remunerating for loss in the nature of diminution in the value of copyright. Invariably, Courts look to the harm suffered by a plaintiff by way of loss of opportunity (such as by lost sales or otherwise) or royalties, rather than approaching the issue from the perspective of a quantifiable loss in asset value. In turn, this potentially misses a claim for harm to the capital value of copyright.

In order to understand the role played in determining an approach to damages based on notional licensing, it is important to be conversant with the various approaches to damages available, and the tailoring of approaches to the specific facts of each case.

As noted by Justice Yates of the Federal Court of Australia in a speech entitled "Recent Developments in IP Remedies",¹ there are relative few cases in IP generally, let alone copyright, where the issue of damages has been pursued to final relief. In the case of copyright, this may well be an incident of the awards of damages often being relatively small, and more often than not arising, if at all, in proceedings in the Federal Circuits Court rather than the Federal Court.

Nevertheless, the Federal Court, at first instance, and on appeal, has given attention to the relevant principles as reviewed below.

General Damages

General damages are available under s. 115 (2) of the Copyright Act 1968 (Cth).

General damages for infringement are compensatory (and not punitive). While damages are intended to compensate for the diminution in the value of copyright by reason of infringement, the award of damages is at large and subject to the discretion of the trial judge to make an award of adequate and sufficient compensation given the harm caused and the redress that is warranted. Damages are not available if an infringement was innocent, in the sense that the defendant was not aware, and had no reasonable grounds for knowing, that his/her conduct was infringing (s. 115 (3)).

Trial judges are commonly having to work with limited evidence of actual loss or potential loss, and intuition, or the judicial sense, plays a major role here. Judges may well differ markedly in their views about proper outcomes based on perceptions of the importance of the subject copyright under consideration.

There is a very wide discretion in determining the approach to damages in copyright, as noted by Bowen CJ in Interfirm Comparison (Aust) Pty Ltd v. Law Society of New South Wales:²

"The purpose of damages is to compensate the plaintiff for the loss which he has suffered as a result of the defendant's breach. It would, in my opinion, be wrong to regard it as the exclusive measure of damages for breach of copyright appropriate in all circumstances. Somewhat different considerations may apply to unpublished works from those which apply to published works. Furthermore, the circumstances in which breach of copyright arises vary widely. Various measures of damage appropriate to the particular circumstances have to be applied. This was recognised when the Copyright Act 1968 was passed (see ss 115 , 116 and 122 )."

The Threshold Question

A critical starting point in understanding the law on general damages for copyright infringement involves the application of the principle that a plaintiff needs to show by evidence or reasonable inference that it has lost a benefit it was entitled to recover by reason of the infringing conduct. It is not open to rely upon showing that the defendant has obtained a benefit. In other words, the benefit of use by a defendant – or user principle – has been rejected in Australia at least with respect to copyright infringement.³ The application of the user principle would in effect impose a royalty on a respondent notwithstanding, as may often be the case, that it is established that an applicant would never have licensed the infringing conduct (and which would currently mean that no such royalty is available).

Whether one looks at recovery by way of a notional licence or for loss of profits which would have been made by the plaintiff, the principle remains that it is necessary to show a likelihood of licensing, the earning of profit or other loss but for the infringement. This is distinguished from the concept of an account of profits being based on the gain obtained by the defendant, and which is generally understood as receiving the benefit of effectively approving or permitting the conduct, whilst at the same time retaining a right to injunctive relief.

In his paper, Justice Yates commented on how this limitation is inconsistent with the approach to the award of damages in other areas of tortious interference where the user principle applies. In fact, his Honour in Winnebago Industries Inc. v. Knott Investments Pty Ltd (No 4),⁴ while acknowledging the rejection of the user principle by the Full Court in Aristocrat, considered that the Full Court was not concerned with passing off (as he was in Winnebago) but rather copyright infringement and proceeded to make an award based on the user principle. This decision in Winnebago was appealed, but the matter subsequently settled. It is clear that a challenge to the Full Court decision in Aristrocrat will emerge, although absent legislative reform, it will need to be by an appeal to a Full Court which will likely be constituted by five judges (enabling a reconsideration of the earlier Full Court decision), and then one would have to anticipate an application for special leave to the High Court.

The Two Approaches

In Eagle Rock Entertainment Ltd v. Caisley,⁵ Tamberlin J referred to "two approaches" in compensating for damage in copyright in Australia – the notional royalty approach, which is particularly apt when the work is of a kind subject to licence, or alternatively remuneration for losses suffered. This second head is sometimes approached as loss of profits in the hands of the rights owner, and is often considered to be the more likely of the approaches to be adopted in determining general damages given difficulties concerning assumed licensing. That approach was adopted by Finkelstein J in TS&B Retail Systems Pty Ltd v. 3Fold Resources Pty Ltd (No. 3)⁶  at [207]:

 "The plaintiff must show that he has lost sales to the defendant as a result of the infringement and quantify the loss suffered. This requires the court to explore the counterfactual hypothesis of the contracts the plaintiff would have obtained absent the infringement and the costs associated with them. Necessarily the process will involve a degree of speculation, but that is no bar to recovery. The claim is not for loss of revenue but for loss of profits. The profits to be calculated are the lost net profits. By net profits I mean revenue less all costs including variable and indirect costs, but not including income tax. Care must be taken to ensure that costs savings are brought to account. If a plaintiff sells less of his products he will have less costs and that should be treated as a gain to be offset against the lost revenue which forms the basis of the computation of lost profits. The plaintiff is also entitled to recover indirect losses (such as damages to goodwill) as long as the cause is the infringement, the loss is foreseeable and is not unduly speculative. It will often be impossible to be precise in the calculation of lost profit. If needs be, the calculation can be rough and ready, with the benefit of any doubt favouring the plaintiff."

Loss of Profits

In determining the loss of profits approach, based on the assumption of sales by the plaintiff, it is necessary to make an appropriate allocation for the lost profits attributable to the infringement.⁷ From an accounting perspective, this would require a review of the profitability to the Plaintiff of lost sales caused by the infringement, and invariably some element of discounting to take account of the typical reduced price of an infringing product.

In the TS&B matter, Finkelstein J awarded $200,000 based on a lost profits calculation, assuming that a supply contract would have been won by the plaintiff and not the defendant by reason of the infringing use of plans.

In Bailey v. Namol Pty Ltd,⁸ compensatory damages were awarded in the sum of $350,000 on the basis of a loss of profits claim – representing the benefit lost to the plaintiff by the wrongful use of plans to secure a contract for supply.⁹  This approach was similar to that adopted by Finkelstein J in TS&B.

In Henley Arch Pty Ltd v. Lucky Homes Pty Ltd,¹⁰ Henley claimed loss of profits in not being able to build a home due to the infringing use of its plans. The home owner wished to have Henley build the house but became frustrated due to delay and price considerations. Beach J found that, but for the offer of the defendant to build the home making an infringing use of the plans, Henley would likely have been appointed the builder, but in assessing general damages (or the loss of profits) he discounted the amount by 20% to take account of the risk of Henley not being engaged – "some estimation or even educated guesswork … is justifiable".¹¹ Beach J assessed quantum on the basis of EBIT (earnings before interest and tax), calculating the profit at $48,231 (which he then discounted to $43,000 for reasons as noted). The total build for the house in that case was quoted at approximately $250,000.

In Elwood Clothing Pty Ltd v. Cotton on Clothing Pty Ltd,¹²  Gordon J approached the issue of the calculation of profits lost to the plaintiff on a discounted basis, taking the benchmark of sales by the defendant and discounting the level of sales because of the difference in price between the plaintiff's and the defendant's garments.¹³ A similar approach was also adopted in Seafolly Pty Ltd v. Fewstone Pty Ltd.¹⁴

This approach is in direct contrast to an account of profits which might be ordered against a defendant, and which is an alternative remedy to damages (including, as has been understood, a claim for further damages). It demonstrates the flexibility in the approach to awards of damages in copyright.

A Further Approach to Loss - Damage to Reputation

In Milpurrurru v. Indofurn Pty Ltd,¹⁵  a case involving infringement of copyright in Aboriginal art,¹⁶  von Doussa J explored the issue of damage to reputation, arising from infringement by the unauthorised reproduction of artistic works on carpets, having regard to issues of standing and responsibility in traditional Aboriginal society, noting that there was no prospect of licensing of the works as to provide that approach to quantifying damages. His Honour considered the cases on remuneration for damage to repute by reason of infringing conduct (being Beloff v. Pressdram Ltd¹⁷  and Nichols Advanced Vehicle Systems Inc v. Rees¹⁸), and determined that a limited award should be made for the exposure to distress caused by the unauthorised reproduction of important works of Aboriginal art on carpets – "The losses arising … are a reflection of the cultural environment in which the artists reside and conduct their daily affairs. Losses resulting from the tortious wrongdoing experience by Aborigines in their particular environments are properly to be brought to account…" While the award under this head was relatively small ($12,000), it was balanced by more significant awards under s. 115 (4) and s. 116 of the Copyright Act (which took the total award to $188,640 – a further sum awarded against the non-executive directors of the defendant was reversed on appeal¹⁹).

The relative meagreness of the award of general damages in the case might be considered to be partly related to timing – in other words, a greater value might be ascribed today to loss of reputation, in the nature of loss of cultural standing of Aboriginal artists.

The Notional Licence

In considering the first of the two approaches referred to by Tamberlin J in Eagle Rock – the notional licensing approach - much depends on whether a plaintiff would have licensed the usage (such as, by reference to a history of licensing), and then there is the issue of the appropriate licence fee to be set and whether there should be an adjustment in favour of a plaintiff because the offending conduct was infringing, although the risk arises that an award of general damages might take on a punitive dimension.

Given the absence of the user principle, it is not possible to look at the benefit obtained by a respondent if a notional licence cannot be properly assumed.

Accordingly, the presumption of licensing at least requires a practice or reasonable assumption of licensing by an applicant, which, in addition to music, would apply readily in the case of infringement and books (where royalties on a licensing or assignment basis can be calculated) or in the case of a display builder which might offer licences in house plans to other builders, as occurred in the case of Barrett Homes and its claims against various home builders of copyright infringement, where there was an established commercial practice of licensing by the plaintiff.²⁰  In each case, the claims for damages were settled, but Barrett raised a basis of calculation referable to its own practice of licensing its display home plans to builders in rural areas, and proposed that the licensing fee be adjusted to take account of a premium which should be paid by an infringer.

The test to apply is of willing (but not overly willing) licensing parties, and sees Courts engaging in an exercise of commercial judgment, with often limited guidance other than possibly a history of actual licensing (which in itself needs to be approached with care given the case-by-case nature of outcomes in the determination of damages).

"Men At Work" case study

In the case of copyright infringement and musical works, the licence approach is readily available because of the compulsory licensing regime in the Copyright Act, as noted in Larrikin Music Publishing Pty Ltd v. EMI Songs Australia Pty Ltd (No. 2).²¹ That decision was concerned with determining general damages for infringement of the musical work "Kookaburra Sits on the Old Gum Tree" by the Men at Work song "Down Under".

Although the award was actually made under the Trade Practices Act (Cth) 1974 and not the Copyright Act, given that there were limitations issues pertaining to the infringement of copyright claim which did not apply to the Trade Practices claim, the principles to be applied were agreed to be those pertaining to infringement of copyright. Jacobson J noted that the test of willing licensee and licensor had to be applied in determining the amount of the notional licence fee.²²

Jacobson J outlined the principles to apply in determining a notional royalty approach as follows (drawing from Ludlow Music Inc v. Williams (No 2) [2002] EWHC 638):

" [29] First, the respondents being wrongdoers, damages should be liberally assessed but the object is to compensate the applicant, not to punish the respondents.
[30] Second, it is common practice in the music industry for the owner of the copyright in a work to grant a licence to a person who seeks to use part of the original work in a derivative work. In those instances the owner of the copyright will grant a licence in return for a share of the copyright (or a share of the income) in or from the derivative work.
[31]  Third, when an infringer uses the copyright work without a licence, the measure of the damages it must pay will be the sum which it would have paid by way of royalty if, instead of acting "illegally", it had acted legally.
[32]  Fourth, where (as in the present case) there is no "normal" rate of royalty or licence fee, evidence may be adduced of practice in the industry including expert evidence of factors which may guide the court in the determination of the applicable rate. Evidence of that type will be general and hypothetical and it will be a matter for the court to determine the weight to be given to it.
[33] Fifth, where (as in the present case) some form of royalty or profit share is appropriate, the basis for the assessment is a transaction between a willing licensor and a willing licensee. The assessment has to be made upon all the relevant evidence which may include evidence of rates agreed in other similar or "comparable transactions".
[34] Sixth, the process is one of judicial estimation. Mathematical precision is not attainable. It would appear that if the court is to err, it should do so on the side of generosity to an applicant."

It is probably fair to say that Jacobson J was reluctant about the making of an award of damages in the case, but plainly considered that some award was necessary. Jacobson J accepted that the bars from "Kookaburra" constituted only a very small part of the "Down Under" song, and that they were difficult to recognise.²³

The judge considered examples of notional licensing outcomes in infringement settings, being the 7.5% royalty paid for the use of David Bowie's "All the Young Dudes" in Green Day's "21 Guns" and the 5% royalty paid for the use of Queen's "We Will Rock You" in Eminem's "Puke". The "21 Guns" example is particularly telling.²⁴

Another issue which arose was "the character and status of the earlier work and the associations attached to it."²⁵ The writer of the song, Paul Ham, was noted as having accepted that the purpose of including the flute passage was to inject an Australian flavour.²⁶

Jacobson J considered that the bars of "Kookaburra" which were used had to be considered in "a balanced way, by looking at their significance in the whole of the work." He concluded that the "musical significance" was relatively small – "It is not easy to detect those bars as is plain from the fact that the resemblance went unnoticed … for some 20 years." Further, the judge said that he could only detect the resemblance "with the assistance of the experts".²⁷

Jacobson J said that evidence of comparables had to be approached with caution, and not treated in the same way as might occur in the active market scenario applying in cases involving the valuation of land – such as Spencer v. Commonwealth. ²⁸

Jacobson J determined to make an award at the lower end of "the scale", noting that the owner of "Kookaburra" would not have had "substantial bargaining power" and with a small amount of the copyright work being taken.  While it had to be assumed that Men at Work would have been "willing licensees", it is also fair to say that their willingness would have been at the bottom end of the range, and perhaps framed around the complications of possibly having to re-record the song to leave out the offending riff. The Court ultimately held that a 5% royalty would be appropriate.

Issues of Proof and Nominal Damages

A Court will not be deterred from determining an award of damages in the absence of actual evidence of loss.³⁰ Nevertheless, the absence of evidence indicating the approach to be adopted will often result in nominal and potentially no damages at all.³¹

The issue of absence of evidence in proving damages was the subject of comment by Hayne J in the High Court in Placer (Granny Smith) Pty Ltd v. Thiess Contractors Pty Ltd³²  (referred to in University of Sydney v. ObjectiVision Pty Ltd (No 8),³³ which concerned an application for late amendment of particulars of loss and damage), where it was stated that a distinction needs to be made between cases where a plaintiff is unable to adduce precise evidence of loss and those where evidence ought to be available but not adduced. It was in the former case that the Courts will make an "estimation", and mere difficulty in making an estimate will not relieve a Court of an obligation to do the best it can.

The problem of absence of evidence, where evidence was likely to be available (if there was loss in fact), was the subject of comment by Jessup J in Facton v Mish Mash:³⁴

"There was no detailed evidence as to the retail circumstances under which the applicants' and the respondents' goods were sold. For example, I do not know to what extent they might be sold in close physical proximity to each other; I do not know what category of consumer might be interested in goods of this kind; and I have no expert evidence as to the tendency for such consumers to make choices by reference to labels or known trading names rather than, for instance, by reference to the fabric, quality, style, comfort and other characteristics of a particular garment. The applicants made no attempt to match particular garments of their own with garments displayed for sale by the respondents, containing one of the infringing labels, to assist the court in determining what a consumer, confronted with the latter, would most probably have done in the absence of that label. Yet the applicants ask me to infer that every consumer who purchased a pair of jeans on which an infringing label was stitched would, in the absence of that label, have purchased a product (presumably a like pair of jeans) from the applicants instead. That would, in my view, be a matter of conjecture or surmise, rather than of inference. The gap in the evidence is just too wide to be crossed by the drawing of an inference, especially since it is the applicants themselves who have chosen to go to trial on this limited evidence."

Besanko J also followed this approach in Futuretronics.com.au Pty Ltd v. Graphix Labels Pty Ltd (No. 2),³⁵ awarding $10 to the Applicant because of its failure to show any economic loss flowing from an infringement. It follows that it is often very difficult to determine an amount to be awarded for general damages, whether based on notional licensing or otherwise, where an infringer was engaged in sometimes heavy discounting and the idea of licensing or loss of a market was at best fanciful.

A similar kind of award to that in Futuretronics was made in Pokemon Company International Inc v. Redbubble Ltd,³⁶ where $1 was awarded in general damages. Redbubble operated an online market place for artists to sell work. Artists placing work on the site warranted that they were entitled to do so. Pokemon sought $44,555 in general damages for lost royalties for infringement of Pokemon character artistic works. Pagone J awarded $1 on the basis that Pokemon failed to show that it would have licensed the works in question. Also, there was no order for additional damages because Redbubble acted promptly to remove the infringing works.

This issue also arose in Facton Ltd v. Rifai Fashions Pty Ltd,³⁷ where Bromberg J at trial rejected a claim for damages to reputation arising from copyright infringement in the absence of evidence of the value of the claimed reputation. The decision was reversed on appeal,³⁸ with the Full Court observing that evidence on quantification was not necessary. The Full Court considered that an award of general damages could be based on the substantial and exclusive goodwill owned by the Applicant in the copyright work. Nevertheless, the award of damages for loss of reputation was relatively nominal ($5,000).

Applying Facton, Bromwich J in Geneva Laboratories Ptd v. Prestige Premium Deals Pty Ltd³⁹ stated that evidence of a positive reputation was sufficient, and there was no need to prove actual loss to that reputation.⁴⁰ $50,000 was awarded in general damages for loss to reputation.

In Dynamic Supplies Pty Ltd v Tonnex International Pty Ltd (No 3),⁴¹ Yates J awarded $1 in compensatory damages but $150,000 for additional damages. The $1 amount was agreed between the parties. The additional damages awarded reflected the knowledge of infringement of Tonnex, indicated by the awareness of the employees involved in the infringing conduct (despite denials).

The issue of the appropriateness of an award of nominal damages arose in Insight SRC IP Holdings Pty Ltd v. Australian Council for Educational Research Ltd,⁴²  with the result of a nominal award of general damages at trial was reversed on appeal (and a sum of $130,000 awarded).⁴³ The Full Court found a genuine loss based on profits which would have been obtained by a licensee company owned by the copyright owner, notwithstanding that the copyright owner himself was not in a position to personally exploit the infringed copyright, although he was the guiding hand which controlled the exploitation of the copyright.

Precise proof of damages is not required and an estimate based on the available indications is often the approach to be adopted. Accordingly, it is sometimes said that the amount to be awarded by a trial judge is "what amount I think right as if I were a jury".⁴⁴ There is, in the circumstances, no need for precision in the calculation. It remains that there is a strong judicial inclination to make small awards for general damages in the absence of evidence of actual or likely harm, including the loss of a genuine licensing opportunity.

Additional Damages

Given the weighting that is sometimes adopted between general and additional damages, it is important to have regard to the principles applying to the award of additional damages. This head of damages often is called in aid to provide some balance in an award of damages where the general damages result is small or nominal, but at the same time is available in supplement to an award of general damages.

Section 115 (4) sets out matters to which the Court should have regard:

"Where, in an action under this section:
(a) an infringement of copyright is established; and
(b) the court is satisfied that it is proper to do so, having regard to:
    (i) the flagrancy of the infringement; and
    (ia) the need to deter similar infringements of copyright; and
    (ib) the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff's copyright; and
    (ii) whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form; and
    (iii) any benefit shown to have accrued to the defendant by reason of the infringement; and
    (iv) all other relevant matters;
the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances."

In Facton, Gilmour J in the Full Court accepted the principle of a connection between the making of an award for general damages as being a precursor to the Court's power to make an award of additional damages.⁴⁵ This view has recently been called into doubt, as noted below.

The damages under this head are punitive, and are directed to conduct that is deliberate, rather than malicious.⁴⁶ In Facton, $25,000 was awarded having regard to the knowledge that the infringing goods were counterfeit, the provision of false undertakings on an inter partes basis (with goods continuing to be sold despite the undertakings), the improper denial of liability in the proceeding and the improper conduct of the proceeding through the giving of evidence found to be false. While the amount ordered was much less than sought ($200,000 on appeal), it reflected the perilous financial position of the respondent and the small amount of profits made by the respondent ($11,000).

Beach J, in Henley Arch Pty Ltd v. Lucky Homes Pty Ltd,⁴⁷ also referred to a function of additional damages being to discourage the improper conduct of litigation by a respondent. Thus, at [249], he stated: - "A respondent's conduct after the commencement of litigation may be taken into account if it involves false denials of infringing conduct or only belatedly acknowledges wrongful conduct (see Facton Ltd v Rifai Fashions Pty Ltd (ACN 003 679 221)(2012) 199 FCR 569 ; 287 ALR 199 ; 95 IPR 95 ; [2012] FCAFC 9 at [44] (Facton) per Lander and Gordon JJ and at [114] per Gilmour J)."

Beach J raised doubt about the view that an award under s. 115(2) must be made before an award of additional damages may be made (at [252]). Nevertheless, additional damages will not be available if an election is made under s. 115 (2) for an account of profits.

In Truong Giang Corporation v. Tung Mau Quach, Wigney J referred to improper conduct in a proceeding as being a factor in the award of additional damages, including the failure to comply with discovery orders.⁴⁸

The essential point of additional damages is to serve as a deterrent for improper conduct. As noted, the award under this head also operates to provide a proper balance in damages outcomes where an award of general damages might be unduly small, having regard to the egregiousness of the infringing conduct.

Conversion and Detention damages

Section 116 provides a separate head for conversion or detention damages, which became discretionary following amendments in 1998. In particular s. 116 (1C) provides that a court is not to grant relief for conversion or detention "if the relief that the court has granted or proposes to grant under section 115 is, in the opinion of the court, a sufficient remedy."

In the case of conversion damages, the measure is based on the value of infringing copies of copyright works as if the copies were the property of the plaintiff. For example, conversion damages would allow a plaintiff to claim the full value of books sold which infringed copyright, in addition to damages for infringement under s.115. The windfall aspect of this separate head, in combination with the discretionary nature of the relief, has meant that the reliance on s. 116 has been significantly reduced since the provision became discretionary in its operation.

Conclusion

The learning in the area exposes a number of issues about the approach to assessing damages for infringement of copyright:

1. The question of enabling Courts to properly determine the question of diminution of copyright remains unresolved. There is much work to be done in developing proper models and approaches to evidence of the capital value of copyright. It is anticipated that this inadequacy will come to remedied as the rise of the intangibles ecomony (and the copyright economy in particular) comes to be better established and accounting practices respond to this development.
2. The failure to apply the user principle would seem to be anamolous and contrary to general policy in the area of tortious relief. It should be possible for aggrieved applicants to claim a royalty from infringing respondents even though it cannot be established that the offending conduct was susceptible to a licensing arrangement.

Paper given to the Intellectual Property Society of Australia and New Zealand Conference, Queenstown, New Zealand in September 2018

References

1. http://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-yates/yates-j-20160909
2. (1975) 6 ALR 445 at 446-7.
3. Aristocrat Technologies Australia Pty Ltd v. DAP Services (Kempsey) Pty Ltd (2007) 157 FCR 564 at [26]-[28]. See also Autodesk Australia Pty Ltd v.Cheung (1990) 94 ALR 472,  Rutter v. Brookland Valley Estate Pty Ltd (2009) 81 IPR 549 at [98], Krueger Transport Equipment Pty Ltd v. Glen Cameron Storage & Distribution Pty Ltd (No 2) (2008) 81 IPR 81 at [31] and Dallas Buyers Club LLC v. iiNet Ltd (No 4) (2015) 114 IPR 297 at [22].
4. (2015) 241 FCR 271.
5. (2005) 66 IPR 504 at 509-510.
6. (2007) 158 FCR 444.
7. AV Jennings Ltd v. Bogden (2009) 80 IPR 356 at [98].
8. (1994) 30 IPR 147
9. See also Henderson v. All Around the World Recordings Ltd. [2014] EWHC 3087
10. [2016] FCA 1217.
11. At [214].
12. (2009) 81 IPR 378
13. The infringement was illustrated in the Annex to the trial judgment at (2008) 76 IPR 83.
14. [2014] FCA 321.
15. (1994) 30 IPR 209 at 242-245.
16. For images concerning the claims of infringement see http://www.colingolvan.com.au/archives/138-images-from-the-carpets-case.
17. [1973] 1 All ER 241 at 268.
18. [1979] RPC 127 at 140.
19. (1996) 66 FCR 474.
20. See Metricon Homes Pty Ltd v. Barrett Property Group Pty Ltd (2008) 75 IPR 455, Carlisle Homes Pty Ltd v. Barrett Property Group Pty Ltd [2009] FCAFC 31 (note the illustration of the infringement in the Schedule to this decision) and Barrett Property Group Pty Ltd v. Dennis Family Homes Pty Ltd (2011) 91 IPR 1.
21. (2010) 188 FCR 321 at [8].
22. At [8].
23. See https://www.youtube.com/watch?v=XfR9iY5y94s.
24. See https://www.bathroomreader.com/2015/03/3-notable-cases-of-musical-infringement/ at 1.05-1.35 (which is repeated) compared with https://www.youtube.com/watch?v=ToXGVcrgNZA at 1.20-1.47
25. At [87].
26. At [108].
27. At [136]-[139].
28. (1907) 5 CLR 418
29. At [215]-[217].
30. Spotless Group Ltd v. Blanco Catering Pty Ltd (2011) 93 IPR 235.
31. Aristocrat Technologies Australia Pty Ltd v. DAP Services (Kempsey) Pty Ltd [2007] FCAFC 40 at [36].
32. (2003) 196 ALR 257 at [38].
33. [2018] FCA 1184.
34. (2012) 94 IPR 523 at [45].
35. [2008] FCA 746
36. [2017] FCA 1541.
37. [2011] FCA 290.
38. (2012) 95 IPR 95.
39. (2017) 122 IPR 279.
40. At [70].
41. [2014] FCA 909.
42. (2013) 101 IPR 484.
43. [2013] FCAFC 62.
44. Fenning Film Services Ltd v. Wolverhampton Walsall & District Cinemas Ltd [1914] 3 KB 1171 at 1174 and Columbia Pictures Industries Inc. v. Luckins (1996) 34 IPR 504 at 510.
45. At [99].
46. Microsoft Corp v. Atifo Pty Ltd (1997) 38 IPR 643 at 648, Eagle Rock at [31], Norm Engineering Pty Ltd v. Digga Australia Pty Ltd (2007) 162 FCR 1 at [302] and Dynamic Supplies Pty Ltd v. Tonnex International Pty Ltd (No 3) (2014) 107 IPR 548 at [37]-[53].
47. Op. cit.
48. (2015) 114 IPR 498 at [138].