EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd

EMI Songs Australia Pty Ltd, the plaintiff, appealed against the decision of the primary judge who found that Larrikin Music Publishing Pty Ltd, the defendant, had infringed the copyright in certain musical works. The dispute centred on whether the defendant's recordings infringed the copyright in the plaintiff's earlier musical works by reproducing a substantial part of those works in material form. The case was heard in the Federal Court of Australia.

The primary legal issues involved the criteria for determining whether an infringement of copyright in musical works had occurred. This required an assessment of whether a substantial part of the plaintiff's musical works had been reproduced in the defendant's recordings, as well as an analysis of the originality and substantiality of the reproduced parts. The court had to consider whether the originality of the plaintiff's works was limited to the composition of the works as a round or if the performance as a round was also required. Furthermore, the court examined whether the copying of non-original musical ideas and commonplaces could constitute infringement and whether the air or melody taken was substantially the same as the original. The court also addressed whether the principles from compilation cases were applicable and if a finding of an intent to infringe was necessary for infringement to be established.

The court found that the primary judge had not erred in his determination that the defendant had infringed the plaintiff's copyright. The court emphasised that the assessment of whether a substantial part had been reproduced depended on objective similarity and a causal connection between the works. The court noted that the determination of objective similarity relied on aural perception and expert evidence, and that the part taken from the plaintiff's work did not need to constitute a substantial part of the defendant's work to establish infringement. The court also held that the principles from compilation cases were not applicable, and that an intent to infringe was not a necessary element for infringement to occur. Consequently, the appeal was dismissed, and the plaintiff was ordered to pay the defendant's costs of the appeal. The cross-appeal was allowed in part, and certain claims related to authorisation were remitted to the trial judge for further determination.

The court ordered that the appeal be dismissed, that the plaintiff pay the defendant's costs of the appeal, that the cross-appeal be allowed in part, that the order dismissing the proceedings be set aside, and that the authorisation claims be remitted to the trial judge. The parties were required to file and serve written submissions on the costs of the cross-appeal within a specified timeframe.