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     Australian Intellectual Property Cases 2001-

This page supplements the Intellectual Property Guide elsewhere on this site.

It identifies major copyright and competition law rulings by courts and tribunals since 2000, along with pointers to selected academic studies.

     ACCC v Universal Music Australia

2001 Justice Hill of the Federal Court held in Australian Competition & Consumer Commission v Universal Music Australia Pty Ltd that the record companies breached sections 46 and 47 of the Trade Practices Act 1974 by ceasing to supply particular retailers engaged in parallel importation of CDs and indicating that other retailers might also face supply problems. Penalties of $450,000 were imposed on each record company, with $45,000 penalties for each of three of company executives. | (2001) FCA 1800.

     Panel Case

2001 TCN Channel Nine Pty Ltd v Network Ten Ltd ('Panel Case') - Federal Court ruling on fair dealing in broadcast television, with claims that commercial broadcaster Network Ten infringed copyright in Channel Nine broadcasts when re-broadcasting extracts of Nine's programme 'The Panel'. | FCAFC 146 (2002)

There's a cogent exploration by Michael Handler in 'A Real Pea Souper: The Panel Case & the Development of the Fair Dealing Defences to Copyright Infringement in Australia' in Melbourne University Law Review 27 (2003) and 'Before the High Court: The Panel Case & Television Broadcast Copyright ' in Sydney Law Review 25 (2003)

On 11 April 2003 the High Court granted Network Ten leave to appeal against the decision of the Full Court of the Federal Court and in September 2003 heard arguments on the operation of ss 14, 25(4) and s 87 of the Copyright Act 1968 regarding the claimed infringement.

     DBMS v Telstra

2002 Desktop Marketing Systems Pty Ltd v Telstra Corporation Limited - Federal Court decision and High Court decision about originality (protection for telephone alphabetical white pages and yellow pages directories). The Federal Court held that common law historically granted copyright in directory and other 'list' cases on the basis of sweat of the brow, irrespective of any "creative" element in arrangement/selection of the list. It upheld Telstra's copyright in the directories on the basis of effort and expense in compilation, despite criticism by publisher Desktop Marketing Systems that there was no selective or creative effort and claims that Telstra's statutory obligation to compile the directories removed the incentive that is generally regarded as a public policy justification for recognition of copyright.

     Henley Arch v Tamawood

2003 Henley Arch Pty Ltd v Tamawood Pty Ltd - Federal Court decision regarding copyright in architects' plans. The Court held that the defendant had infringed copyright in the architectural plans and drawings of a project home, which had purchasedfrom a developer and ubsequently adapted by that client for construction by another builder. | FCA 204 (14 March 2003)

     Sony v University of Tasmania

2003 Sony Music Entertainment (Australia) Ltd v University of Tasmania - Federal Court decision on discovery application by record companies against three universities for alleged use of the universities' computer networks for reproduction and communication of MP3 files, infringing copyright in music and sound recordings. The companies sought access to university records to identify alleged infringers and to determine whether there are grounds to seek relief for infringement. The universities resisted on a number of grounds that included privacy. The Federal Court agreed to grant the orders on certain conditions, primarily regarding preservation of confidentiality and privilege. | FCA 532 (30 May 2003)

     Universal Music Australia Pty Ltd v ACCC

In its 22 August 2003 decision in the appeal by Universal, Warner and their executives regarding Australian Competition & Consumer Commission v Universal Music Australia Pty Ltd (above) the Full Federal Court overturned the finding that the companies had abused their market power in breach of section 46 of the Trade Practices Act. It held that neither Universal Music nor Warner held a 'substantial' degree of power in the market for wholesale recorded music in Australia but increased penalties imposed on the companies to $1 million each in upholding the finding that the companies breached section 47 of the Trade Practices Act by engaging in exclusive dealing. Failure to achieve a "substantial effect on the market" by witholding supply from parallel importers was no defence. The Court ordered the companies and four executives to pay one half of the ACCC’s costs of the trial and of the appeals. | FCAFC 193

     Sony v Stevens

2003 Kabushiki Kaisha Sony Computer Entertainment v Stevens - full Federal Court decision regarding anticircumvention. The Court overturned the decision regarding circumvention of technological protection measures ("mod chips" in Sony playstations). In overturning the decision that the chip was not a technological protection measure within the meaning of the Copyright Act the Full Court agreed that there was no reproduction or copying in RAM when the game was played. | FCAFC 157 (30 July 2003)

     Universal Music v Hendy Petroleum

The Federal Magistrates Court of Australia decision in Universal Music & Ors v Hendy Petroleum & Ors concerned a successful action under the Copyright Amendment (Parallel Importation) Act 2003 for damages and punitive damages against a service station selling infringing CDs. | FMCA 373

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