In the recent decision of my local district court in Vanwake Investments Pty Ltd v New-Stat Nominees Pty Ltd & Ors [2005] QDC 57 it has become fairly obvious that copyright infringement will not be tolerated.
In the case a designer who had created a set of plans for a shop fitting was knocked back to complete the job. The owner of the shop passed a pencil drawn plan to a new shopfitter and had him complete the job.
The court had this to say about pencil drawing a similar plan:-
It was submitted on behalf of the defendants that if Mr Rowe intended merely to copy the plaintiff’s plan he would not have gone to the trouble of producing the hand drawn sketch Exhibit 39 as the first step. But in my opinion there are obvious answers to that. In the first place, he would have wanted to conceal even from others within the defendant companies that he was copying the plaintiff’s plan. Mr Dillon’s evidence suggests that he was concerned even to conceal that from him. Ordinarily within the fifth defendant plans started out with a pencil sketch by Mr Rowe (p.271), so this plan had to start off the same way. Besides, it would be too blatant a breach of copyright simply to use photocopies of the plaintiff’s plans as working drawings. Apart from these considerations, Mr Rowe would have wanted to make use of his standard display modules and fittings, and the preparation of the pencil sketch permitted an interpretation of the plaintiff’s plans by reference to those standard modules of the defendants. It also gave Mr Rowe the opportunity to introduce a couple of design ideas of his own. Accordingly I do not think that the use of a pencil sketch as the first document which was copied is at all a reason to reject the proposition that it was produced by copying.
But the real harshness came in the damages bill.
Damages were awarded in the amount of 10,000.00 for the infringement itself.
The court noted that reduction of damages on the basis that the designer could have worked on another job was not reasonable:-
Another consideration is whether this really did represent loss of profit, in the sense that, because the plaintiff was not doing this job, it was able to devote its resources to other jobs which acted as an alternative source of profit. Mr McConaghy said that they had been making some allowance in their programming to do this job (p.120), and when it fell through they had some difficulty in keeping work up to employees: p.121. That suggests that it was not the case that the profit which would have been earned on this job was simply earned on some other job instead. On the whole I do not think that this is the sort of case where other transactions in practice made up in other ways the profit which would have been earned from this job had it gone ahead.
The court then turned to additional damages under Bailey v Naimol:-
As to the first of these, this was a fairly flagrant infringement. The plans were identified as the plaintiff’s plans, and in the circumstances as I have found then Mr Rowe must have known that he was copying the plaintiff’s plans. It is apparent from his evidence that he knew that this was wrong, and as early as 15 September there was correspondence from the plaintiff’s solicitors claiming copyright. This was after all the plans had been drawn, but before any of the work was done. I think it unlikely that that correspondence would have come as a surprise to the defendants, but in any case the third and fourth defendants proceeded with the construction of the shop on the basis of the plans after the correspondence.
The court noted damages of $25,000.00 would suffice for the usual 'notional Licence Fee' approach Raben Footwear v Polygram Records however the court went onto note that where there is a greater amount of damage that the court may award this amount:-
In my opinion the notional licence fee and vindication of property right assessment is essentially one which is applied in circumstances where it cannot be shown that the plaintiff has suffered actual loss in a greater sum. Where however a greater actual loss can be shown, that in my opinion is the appropriate approach for the assessment of damages. For that reason I assess damages of $64,000. For reasons given earlier, each of the defendants is jointly and severally liable for this amount.
This is probably the largest award of damages that we have seen in the DIstrict Court for a copyright infringement case. I was beginning to get worried after the Carlisle Homes and Macedab decisions where a little over 500.00 dollars was awarded for infringement of a house plan.
I applaud the court for properly addressing the damages faced by a designer of artistic works that are flagrantly ripped off without a hint of reward - Bravo.
