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) |
| 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
Applicant to bring in short minutes of proposed injunctions within seven days.
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”).
The second and third respondents pay the applicants the sum of $16,952.83 and $4,698.76 interest for…
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- AGLC
- APRA v Cougars Tavern [2008] FMCA 369
- Case
- [2008] FMCA 369
- Decision Date
CaseChat Overview and Summary
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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