Avel Pty Ltd v Wells, J

[1992] FCA 461

Re: AVEL PTY. LIMITED; CAPCOM CO. LIMITED and TAD CORPORATION LIMITED
And: JONATHAN WELLS
No. G816 of 1991
FED No. 461
Intellectual Property
(1992) AIPC 90-901
(1992) 108 ALR 97
(1992) 23 IPR 353

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard(1), Lee(1) and Hill(1) JJ.

CATCHWORDS

Intellectual Property - copyright - parallel importation - circuit layouts - importation of eligible layouts for video games - eligible layouts containing substantial parts of computer programs, the copyright in which was owned by one or other of the appellants - whether importation of such eligible layouts constituted an infringment of appellants' copyright in computer programs.

Circuit Layouts Act 1989, ss. 5, 8, 11, 16, 17, 19 and 24.

Copyright Act 1968, ss. 37 and 38.

HEARING

SYDNEY

#DATE 30:6:1992

Counsel and Solicitors for Applicant: D.F. Jackson QC with R.J. Webb

instructed by Kemp, Strang and Chippindall

Counsel and Solicitors for Respondent: D.K. Catterns with J.V. Nicholas
for Respondent: instructed by Corrs Chambers

Westgarth

ORDER

THE COURT ORDERS THAT:-

1. The appeal be dismissed.

2. The appellants pay to the respondent his costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The appellants, Avel Pty Limited ("Avel"), Capcom Co Limited ("Capcom") and Tad Corporation Limited ("Tad") are the applicants in proceedings against the respondent, Mr Jonathan Wells ("Mr Wells") in which they sought, inter alia, an injunction against Mr Wells, restraining him, inter alia, from importing, selling or offering for sale certain electronic video games in kit form. The relevant games are referred to as "Carrier Airwing", "Final Fight", "Street Fighter II" and "Blood Brothers". Each of the game kits comprises a printed circuit board ("PCB"), into which are plugged certain memory storage devices, an operator's manual and certain stickers.

1. In relation to the game kits for the first three games, Capcom is the owner pursuant to the Copyright Act 1968 ("the Copyright Act") of copyright in three literary works being:
   

(a) the computer programmes contained in the memory storage devices in integrated circuit form which are fitted to the PCBs;

(b) the written materials contained in the operator's manuals included in the kit; and

(c) the written materials included on stickers designed to be placed on the exterior of the video game cabinet into which the PCB is installed for use.

1. Capcom is also the owner, pursuant to the Copyright Act, of copyright in artistic works being the drawings and diagrams contained in the operator manuals included in the game kits, and the drawings and diagrams reproduced on the stickers.

2. In respect of the Blood Brothers game kit, Tad is the owner, nter alia, of the copyright in literary works being the computer programmes contained in the memory storage devices in integrated circuit form fitted to the PCBs. Tad is also the owner of copyright in the written materials contained in the operator's manuals, the written materials included on stickers…