Adelaide Corporation v Australasian Performing Right Association Ltd

The appeal concerned the Corporation of the City of Adelaide (appellant) and the Australasian Performing Right Association Ltd. (respondent). The dispute arose from the respondent's claim that the appellant had infringed its copyright by permitting its Town Hall to be used for the public performance of a musical work, "I heard you singing," without consent. The matter was heard by the High Court of Australia on appeal from the Supreme Court of South Australia, which had found in favour of the respondent.

The central legal issue before the High Court was whether the appellant had "permitted" the use of the Town Hall for the performance of the copyrighted song, thereby infringing the respondent's copyright under section 2(3) of the Copyright Act 1911 (as adopted in Australia). This section deems copyright to be infringed by any person who, for private profit, permits a place of entertainment to be used for the public performance of a copyrighted work without the copyright owner's consent, unless the person was unaware and had no reasonable grounds for suspecting infringement. The court had to determine if the appellant's actions, or inactions, after being notified of the impending performance, constituted such a "permission."

A majority of the High Court (Higgins, Gavan Duffy, and Starke JJ.) held that no inference of permission could be drawn. They reasoned that while the appellant had the power to cancel the hiring agreement under certain conditions, and had been notified of the potential copyright infringement, there was no positive act or omission that amounted to a "permission" in the legal sense. The court found that the appellant's failure to act beyond acknowledging the respondent's letters did not demonstrate a wilful allowance or sanction of the performance. The majority distinguished this case from situations where a party actively facilitates or fails to take reasonable steps to prevent a known infringement when they have direct control over the infringing act.

The appeal was allowed, and the decision of the Supreme Court of South Australia was reversed. The High Court found that the appellant had not infringed the respondent's copyright by permitting the performance of the song.