APRA v Cougars Tavern

Case [2008] FMCA 369


FEDERAL MAGISTRATES COURT OF AUSTRALIA

A.P.R.A. v COUGARS TAVERN & ORS [2008] FMCA 369

COPYRIGHT – Musical work – where respondents did not enter into licences for public performance of recorded music.

DAMAGES – Assessment – whether injunctive relief appropriate – whether compensatory damages should be awarded – whether damages should be awarded under s.115(4) Copyright Act 1968 – whether conduct of respondents ‘flagrant’ – whether benefit accrued to respondents by reason of infringement – whether respondents engaged in deliberate pattern of conduct to conceal illegal enterprise.

Copyright Act 1968 (Cth), ss.115(2),(4), 126
Civil Procedure Act 2005 (NSW), s.100
Federal Court of Australia Act 1976 (Cth), s.51A
Federal Magistrates Act 1999 (Cth), s.76
Federal Court Rules (Cth)
Uniform Civil Procedure Rules 2005 (NSW), reg. 36.7
New Zealand Copyright Act 1962 (NZ), s.24(3)
Commonwealth of Australia v Evans [2004] FCA 654
Meskenas v ACP Publishing Pty Ltd [2006] FMCA 1136
Sutherland Publishing v Caxton Publishing [1936] Ch 323
International Writing Institute v Rimila (1995) 31 IPR 356
Namol Pty Ltd v AW Baulderstone Pty Ltd (1993) 119 ALR 187
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 68
Aristocrat Technologies Australia Pty Ltd v Vidtech Gaming Services Pty Ltd Aristocrat Technologies Australia Pty Ltd & Anor v DAP Services (Kempsey) Pty Limited (In Liquidation) [2007] FCAFC 40
International Credit Control Limited v Axelson [1974] 1 NZLR 695
PPCA v Adelaide City Entertainment [2005] FMCA 923
SBO Pictures Inc v Kaos Shop Pty Ltd [2006] FMCA 82
Microsoft Corporation v Ezy Loans [2004] 63 IPR 54
Zero Tolerance Entertainment Inc v Venus Adult Shops Pty Limited [2007] FMCA 155
Microsoft Corporation v Goodview Electronics Pty Ltd (2000) 49 IPR 578
Microsoft Corporation v Glostar Pty Ltd (2003) 57 IPR 518
Microsoft Corporation v PC Club Australia Pty Ltd (2005) 148 FCR 262
Universal Music Australia Pt Ltd v Hendy Petroleum (2003) 59 IPR 204
Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228; (2005) 64 IPR 18
Foxtel Management Pty Limited v The Mod Shop Pty Ltd [2007] FCA 463
Applicant: AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED
ACN 000 016 099
First Respondent: COUGARS TAVERN PTY LIMITED T/AS OPTIONS TAVERN
ACN 112 895 619
Second Respondent: BACKDRAFT (VIC) PTY LIMITED T/AS HEAT NIGHTCLUB
ACN 104 340 221
Third Respondent: MR ROBERT BOTAZZI
Fourth Respondent: MR SIMON BURTONCLAY
File Number: SYG3574 of 2007
Judgment of: Raphael FM
Hearing date: 13 March 2008
Date of Last Submission: 13 March 2008
Delivered at: Sydney
Delivered on: 28 March 2008

REPRESENTATION

Counsel for the Applicant: Mr M Hall
Solicitors for the Applicant: Banki Haddock Fiora
For the Respondent: No appearance

ORDERS

  1. Applicant to bring in short minutes of proposed injunctions within seven days.

  2. The first, third and fourth respondents pay the applicant $5,688.00 and $447.70 interest for breach of copyright pursuant to s.115(2) of the Copyright Act 1968 (Cth) (“the Act”) (the “Options Tavern breach”).

  3. The second and third respondents pay the applicants the sum of $16,952.83 and $4,698.76 interest for…

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Details
AGLC
APRA v Cougars Tavern [2008] FMCA 369
Case
[2008] FMCA 369
Decision Date

CaseChat Overview and Summary

APRA, the applicant, filed a copyright infringement lawsuit against several respondents who had been operating venues where recorded music was publicly performed without the necessary licenses. The case was heard and determined in the Federal Court of Australia. The primary issue for the court was to determine the extent of the respondents' liability for copyright infringement and the appropriate remedy. This included deciding whether injunctive relief was appropriate, whether compensatory damages should be awarded, and if the respondents' conduct was flagrant enough to warrant additional damages under section 115(4) of the Copyright Act 1968 (Cth).

The court found that the respondents had indeed infringed copyright by operating venues where recorded music was publicly performed without the necessary licenses. The court examined the nature of the infringement, whether the respondents had engaged in a deliberate pattern of conduct to conceal their illegal enterprise, and whether the respondents had benefited from their actions. The court concluded that the respondents' conduct was flagrant and that they had benefited from the illegal enterprise, justifying additional damages under section 115(4) of the Act. The court also found that injunctive relief was appropriate and awarded compensatory damages in addition to the statutory damages.

In summary, the court ordered various respondents to pay statutory damages and additional damages for the copyright infringement. The court also ordered that the respondents pay the applicant's costs of the proceedings. The monetary awards and costs orders were subject to a 14-day stay to allow for any appeals or further applications.

Orders

Orders of the court

1.

Applicant to bring in short minutes of proposed injunctions within seven days.

2.

The first, third and fourth respondents pay the applicant $5,688.00 and $447.70 interest for breach of copyright pursuant to s.115(2) of the Copyright Act 1968 (Cth) (“the Act”) (the “Options Tavern breach”).

3.

The second and third respondents pay the applicants the sum of $16,952.83 and $4,698.76 interest for breach of copyright pursuant to s.115(2) of the Act (the “Heat nightclub breach”).

4.

The first respondent pay the applicant $40,000.00 by way of additional damages pursuant to s.115(4) of the Act (the “Options Tavern breach”).

5.

The third respondent pay the applicant $100,000.00 by way of additional damages pursuant to s.115(4) of the Act (the “Options Tavern breach”).

6.

The fourth respondent pay the applicant $40,000.00 by way of additional damages pursuant to s.115(4) of the Act (the “Options Tavern breach”).

7.

The second respondent pay the applicant $50,000.00 by way of additional damages pursuant to s.115(4) of the Act (the “Heat nightclub breach”).

8.

The third respondent pay the applicant $125,000.00 by way of additional damages pursuant to s.115(4) of the Act (the “Heat nightclub breach”).

9.

Respondents to pay the applicant’s costs of the proceedings, to be 80% of the costs as taxed, if not agreed, pursuant to the Federal Court of Australia Act 1976 and Federal Court Rules.

10.

Orders 2 – 9 be stayed for 14 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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