Australasian Performing Right Association Limited v Parry

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Australasian Performing Right Association Limited v Parry [2023] FedCFamC2G 498

File number(s): SYG 653 of 2023
Judgment of: JUDGE MANOUSARIDIS
Date of judgment: 16 June 2023
Catchwords: INTELLECTUAL PROPERTY – Practice and procedure – application for default judgment based on statement of claim alleging infringement of copyright in literary and musical works – whether on the face of the statement of claim the applicant has established an entitlement to relief for infringement of copyright – whether it is appropriate to grant declaratory and injunctive relief – whether it is appropriate to assess damages on the basis of the licence fee that would have been paid to the applicant – whether additional damages should be ordered – relief granted.
Legislation:

Copyright Act 1968 (Cth) ss 115(2), 115(4), 126

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 211

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.04(2), 13.05, 13.06(2)   
Cases cited:

Australasian Performing Right Association Limited v Escape Bar & Night Club Pty Limited & Anor [2017] FCCA 2690

Autodesk Australia Pty Ltd v Cheung (1990) 94 ALR 472

Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2016] FCAFC 22

Dynamic Supplies Pty Ltd v Tonnex International Pty Ltd (No 3) [2014] FCA 909

Division: General
Number of paragraphs: 33
Date of hearing: 8 June 2023
Place: Sydney
Solicitor for the Applicant: Mr B John of Banki Haddock Fiora, by telephone
The Respondent: No appearance by, or on behalf of, the respondent

ORDERS

SYG 653 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED (ACN 000 016 099)

Applicant
AND:

KENNETH JAMES PARRY

Respondent

order made by:

JUDGE MANOUSARIDIS

DATE OF ORDER:

16 JUNE 2023

THE COURT DECLARES THAT:

1.The respondent infringed the applicant’s copyright in the following musical and literary works (Works):

(a)Goodna (lyrics and music) written by Judson Jack Campbell;

(b)From Hell (lyrics and music) written by Sean Michael Millar;

(c)Future Lady (lyrics and music) written by Sean Michael Millar and James Dean Jackson; and

(d)To the Moon and Back (lyrics and music) written by Daniel Jones and Darren Stanley Hayes,

by:

(e)on 5 April 2019, without the licence of the applicant, performing the works referred to in (a) by means of background music in the course of a business (Business) the respondent conducted under the name of “King Lear’s Throne” at Unit 3, 693 Ann Street, Fortitude Valley, Queensland (Premises); and

(f)on 11 May 2019, without the licence of the applicant, performing the works referred to in (b), (c), and (d) by means of live performance in the course of the Business conducted on the Premises.

THE COURT ORDERS THAT:

2.The respondent, by himself or his agents, is restrained from:

(a)performing in public without the licence of the applicant the Works;

(b)performing in public without the licence of…

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Details
Case
[2023] FedCFamC2G 498
Decision Date

CaseChat Overview and Summary

The case of Australasian Performing Right Association Limited v Parry involves the Australasian Performing Right Association (APRA) suing Parry, the proprietor of a business known as “King Lear’s Throne,” for copyright infringement. APRA alleges that Parry performed and authorized the performance of certain musical and literary works in public without APRA’s license, thereby infringing on APRA’s copyright in those works. The matter was brought to the Federal Court of Australia, which was required to determine whether Parry's actions constituted copyright infringement and, if so, what remedies were appropriate.

The primary legal issues the court had to address were whether the works in question were protected by copyright, whether APRA held the necessary rights to those works, and whether Parry's actions constituted an infringement of those rights. Additionally, the court had to consider whether Parry's actions were deliberate and willful, and if so, whether APRA was entitled to damages and an injunction to prevent further infringement. The court also needed to decide if there were any defenses Parry could raise to APRA's claims.

In its reasoning, the court reviewed the principles governing the exercise of powers to make orders under the relevant rules, as well as the elements required to establish a cause of action for copyright infringement. The court found that APRA did indeed hold the copyright for the works in question and that Parry had performed and authorized the performance of these works without the necessary license. The court further determined that Parry's actions were deliberate and willful, as he was aware of his lack of authorization and the fact that his actions constituted an infringement. Consequently, the court awarded APRA damages and granted an injunction to prevent further infringement by Parry.

The final orders included the payment of damages by Parry to APRA and a permanent injunction prohibiting Parry from performing or authorizing the performance of the specified works without APRA's license. This decision underscores the importance of adhering to copyright laws and the potential consequences of willful infringement.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have set out elsewhere (Earlier APRA Judgment) the principles that govern the exercise of the power to make orders pursuant to r 13.05(2)(c) of the GFL Rules, and also the elements of a cause of action for infringement of copyright.[1] [1] Australasian Performing Right Association Limited v Escape Bar & Night Club Pty Limited & Anor [2017] FCCA 2690, at [13]-[30]. I there considered the equivalent rules of the Federal Circuit Court Rules 2001 (Cth).APRA’S CLAIMS AND PROCEDURAL HISTORY APRA commenced this proceeding by application filed on 20 April 2023. The application was supported by a statement of claim in which APRA alleges as follows:(a)Copyright subsists in the musical and literary works identified in the statement of claim (Works).[2] Particulars to that allegation identify each of the Works, and the author or authors of the Works. These are:(i)Goodna (lyrics and music) written by Judson Jack Campbell;(ii)From Hell (lyrics and music) written by Sean Michael Millar;(iii)Future Lady (lyrics and music) written by Sean Michael Millar and James Dean Jackson; and(iv)To the Moon and Back (lyrics and music) written by Daniel Jones and Darren Stanley Hayes. [2] Statement of claim, [3](b)APRA is the owner, or is the representative of the owner, of the copyright that subsists in each of the Works to perform the Works in public (performing rights).[3] APRA became the owner or representative of the owner of the performing rights by an assignment made by each of the owners to APRA. (c)Copyright subsists in the works that form part of “the APRA Repertoire” (APRA Repertoire Works);[4] and APRA is the owner, or representative of the owner or owners, of the performing rights in the APRA Repertoire Works.[5] (d)The statement of claim does not define the “APRA Repertoire”; but the expression is defined in the schedule to the application as follows:[3] Statement of claim, [4][4] Statement of claim, [5][5] Statement of claim, [4]APRA REPERTOIREThe Applicant: (a)owns the copyright in respect of its application to the performance in public; and/or(b)has the power to grant licences for the performance in public,of practically all musical and literary works performed throughout Australia. The repertoire comprises the works written by members of the Applicant – who constitute more than 110,000 composers, authors and publishers of music – and members of affiliated societies in countries throughout the world. The Applicant has carried on the business as an association of composers, authors and publishers of music for the purpose of licensing the public performance of musical and literary works since 1926. The Applicant maintains a catalogue of its repertoire. The catalogue lists the works in which the Applicant owns the right of performance of the works in public. At present there are more than 10 million works listed in the catalogue. The items in the catalogue may be inspected by arrangement with the Applicant. (e)The respondent is the proprietor of a business known as “King Lear’s Throne”, located at Unit 3, 693 Ann Street, Fortitude Valley, Queensland (Premises).[6][6] Statement of claim, [2](f)The respondent infringed APRA’s copyright in the Works and in the APRA Repertoire Works by, without the licence of APRA, performing the Works and APRA Repertoire Works in public; or by authorising the performance in public of the Works and the APRA Repertoire Works.[7] In particular:[7] Statement of claim, [6](i)On 5 April 2019 Goodna and other APRA Repertoire Works were performed at the Premises by means of background music.(ii)On 11 May 2019 From Hell, Future Lady, To the Moon and Back, and other APRA Repertoire Works were performed at the Premises by means of live performance.(g)APRA has requested the respondent desist from infringing its copyright in the Works and in the APRA Repertoire Works.[8][8] Statement of claim, [6], particulars [iv](h)The respondent did the acts referred to in (f):[9][9] Statement of claim, [7](i)knowing he did not have APRA’s licence to do those acts;(ii)knowing that to do those acts without the licence of the owner of the copyright in the Works constituted an infringement of the copyright in the Works; (iii)in circumstances where, while avoiding the payment of licence fees to APRA, substantial benefit accrued to the respondent; and(iv)wilfully persisting in doing those acts despite having the knowledge referred to in (i) and (ii).(i)APRA relies on the following matters in support of the allegations referred to in (h):[10](i)the respondent was a party to a background music licence agreement and live performance licence agreement with APRA in relation to the Premises from 1 December 2017 to 31 December 2018;(ii)by letter dated 19 December 2018 APRA terminated agreements referred to in (i) because the respondent failed to pay the licence fees payable under the agreements; and(iii)letters passing between APRA’s lawyers and the respondent.(j)The respondent’s acts are such as to render appropriate the awarding of damages under s 115(4) of the Copyright Act.(k)As a result of the respondent’s acts, APRA has suffered loss and damage, and it will continue to suffer loss and damage unless the respondent is restrained from doing those acts.[10] Statement of claim, [7], particulars

Ratio Decidendi

Legal Principle Established

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