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Acohs Pty Ltd v RA Bashford Consulting Pty Ltd

Acohs Pty Ltd v RA Bashford Consulting Pty Ltd

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Case Copied 9 May 1997 70 min read

Contents

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Trade Practices - Publication of false claim of copyright infringement - Retraction of claim - Whether publication of retraction relevant to breach of s.52 - Whether retraction relevant to remedy - Whether injunctive relief should be granted when no threat of further publication - Whether damages should be awarded for harm to reputation and goodwill when no loss of income is established.

Copyright - Material safety data sheets compiled for hazardous substances - Whether sufficient skill, judgment or labour expended in producing the compilation - Whether an original literary work - Whether copyright subsists in the compilation.

Copyright - Infringement of copyright by reproduction and adaptation of material safety data sheets into a computer database - Data sheets commissioned for the purpose of enabling safe industrial handling, storage, use and transportation of hazardous chemicals - Whether implied licence by the copyright owner that the sheets may be reproduced or adapted for the safety related purposes for which they were brought into existence - Whether licence is implied by law to a particular class of contracts or only where it is necessary to give business efficacy to the particular contract - Whether licence should be implied in favour of third parties using the data sheets - Whether implied licence is excluded by the terms of the contract commissioning the preparation of the sheets - Whether reproduction and adaptation of the sheets by a computer software supplier within terms of the implied licence - Whether copyright in the data sheets infringed by computer software supplier.

Copyright - Relief for infringement - Whether public interest is a defence to copyright infringement - Whether remedies of injunction and delivery up of infringing copies should be refused on grounds of public interest - Whether Court ought to refuse discretionary remedies which have the effect of preventing or impeding the provision of information for the safety of members of the public - Whether Court ought to refuse relief which might affect the liability of third parties to members of the public.

Trade Practices Act 1974 (Cth) ss.52, 80 and 82.
Copyright Act 1966 (Cth) ss.35, 36, 115 and 116.

Wardley Australia Ltd v. The State of Western Australia (1992) 175 CLR 514
Typing Centre of NSW Pty Ltd v. Northern Business College Ltd (1989) ATPR 40-943
FAI General Insurance Co Limited v. RAIA Insurance Brokers Limited (1992) 108 ALR 479
Albion Insurance Company Limited v. Government Insurance Office of New South Wales (1969) 121 CLR 342

Jones v. Mortgage Acceptance Nominees Ltd (1996) 142 ALR 561
A-One Accessory Imports Pty Ltd v. Off Road Imports Pty Ltd (1996) 34 IPR 306
A-One Accessory Imports Pty Ltd v. Off Road Imports Pty Ltd (No 2) (1996) 34 IPR 332
G.A. Cramp & Sons Limited v. Frank Smythson Limited [1944] AC 329
Football League Ltd v. Littlewoods Pools Ltd [1959] 1 Ch 637 Computer Edge Pty Ltd v. Apple Computers Inc (1986) 161 CLR 171
Ladbroke (Football) Ltd v. William Hill (Football) Ltd [1964] 1 WLR 273

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] FCA 352
Decision Date: 9 MAY 1997

CaseChat Overview and Summary

The case of Acohs Pty Ltd v. RA Bashford Consulting Pty Ltd involved a dispute between Acohs, a provider of chemical information management services, and RA Bashford Consulting Pty Ltd (RMS), Risk Management Concepts Pty Ltd (RMC), and Bernie Bialkower (Bialkower), the owner of Chemwatch, a competitor of Acohs. The dispute arose from a false claim by RMS and RMC that Chemwatch had successfully challenged two companies for copyright infringement in relation to material safety data sheets (MSDSs). Acohs claimed that the false claim had caused it harm and sought relief under the Trade Practices Act 1974 (Cth) (TPA). Bialkower, on the other hand, claimed that Acohs had infringed his copyright in the MSDSs and sought relief under the Copyright Act 1968 (Cth) (Copyright Act).

The Federal Court of Australia held that RMS and RMC contravened s.52 of the TPA by publishing the false claim in their newsletter. The Court also found that Bialkower was a person involved in the contravention. Acohs was awarded $20,000 in damages for the harm to its reputation and goodwill caused by the false claim. The Court dismissed Bialkower's claim for copyright infringement, as Acohs' use of the MSDSs was within the implied licence granted to Chemwatch. The Court also refused to grant injunctive relief to Bialkower, as it would be contrary to the public interest to prevent the disclosure of MSDSs for safety-related purposes.

The Court ordered RMS, RMC, and Bialkower to pay Acohs' costs of the proceeding, with Bialkower paying two-thirds of those costs. RMS and RMC were also ordered to pay Bialkower one-third of their costs of the proceeding.

Orders