Evidence
Evidence Before The Court
The Terms and Conditions included a number of obligations on the part of the real estate agency. They included that the agency would only upload listings to the platform itself or by an authorised third party; that the agency would ensure that any statement made to REA or any content or material supplied was not unlawful, was not provided for an improper purpose, and was not misleading or deceptive (in the terms of the text); and that any material supplied does not include information that infringes the intellectual property rights of third parties or would otherwise expose REA to liability, legal proceedings or other sanction. The Terms and Conditions contain an indemnity by the agent given to REA and its officers, employees and agents in broad terms. Some aspects of Mr Rechtman’s evidence for REA At [14], the primary judge sets out some aspects of the evidence of Mr Rechtman, the Executive General Manager, Residential, of the REA Group. Mr Rechtman gave evidence that the platform contained a “Buy” section where consumers could search for properties listed for sale; a “Rent” section; and a “Sold” section. The primary judge set out Mr Rechtman’s evidence concerning the “Sold” section in this way (PJ, [14](c)):(c)The “Sold” section, located at the URL [URL cited]. The Sold section includes a search function that allows consumers to retrieve historical information on each property that has been listed for sale on the realestate.com.au platform, and realestate.com.au has been informed by the real estate agency that listed the property for sale that the property has been sold. The Sold section of the realestate.com.au platform has been active since at least 2003. The information available for each “Sold” listing includes the most recent date of sale, sale price, the property’s specifications (eg, number of bedrooms, bathrooms, car spaces etc), and photographs and floor plans provided by the real estate agency for the listing used to advertise the property for sale. In addition to information provided by the real estate agency, the “Sold” page for a property includes data that realestate.com.au obtains from third party sources, including the sold price.[emphasis added] As to the “Property Value” section, the primary judge identified Mr Rechtman’s evidence in these terms (PJ, [14](d)):(d)The “Property Value” section, located at the URL [URL cited]. Since at least 2015, realestate.com.au has provided a service known as “page for every property” (P4EP) which is currently accessible via the Property Value search function on the realestate.com.au platform. When a consumer enters a property address into the “Property Value” search function, a page for the corresponding address is retrieved which includes at least the following information on the property:(i)Whether the property is for sale, for rent or off market.(ii)Any photographs or plans previously uploaded by real estate agencies on the realestate.com.au platform in relation to the property, including photographs used in past sale or rental campaigns. (iii)The property’s specifications (ie, number of bedrooms, bathrooms, car spaces, land size, floor area, year built, etc).(iv)The property’s sale history and past prices at which it sold, if available. (v)An estimate of the property’s current value, if available. This is only displayed for properties that are off market. (vi)A summary of market activity for properties of similar size in the property’s suburb, including median sale and rent prices for the past 1 year, and 10 years.(vii)Links to the P4EP for properties neighbouring the property.[emphasis added]Some aspects of Mr O’Donnell’s evidence for RPD
Decision
Reasons for decision
As to the scope of the fees charged by the appellants, there was no evidence of what was taken into account in setting the fee. However, the primary judge notes that the appellants received “valuable consideration” for the work done so that the agencies could upload the works so originated under the agreement to the REA platform. Further findings and conclusions of the primary judge Against the background of these observations (and where already noted, findings) the primary judge reaches a series of ultimate conclusions. I will identify those conclusions and note some further features of the contentions of the parties: (1)At a time from at least before early 2014, the appellants and the agencies “conducted themselves” on the basis that the agencies had the right to upload the works to the REA platform “in accordance with the terms and conditions between REA and the agencies”. Thus, on that footing, the content of the licence expressly granted by the appellants to the agencies included, by reason of a course of dealing between the appellants and the agencies, a right in the agencies to sub‑licence REA in the express terms of REA’s Terms and Conditions: PJ, [70]. (2)The primary judge finds that the appellants and the agencies “either knew or must have assumed” that REA’s Terms and Conditions contemplated that REA was permitted to make the appellants’ works available on REA’s platform after completion of the sale and lease transaction, and permitted REA to provide the works to RPD: PJ, [70].(3)The significance of the reference by the primary judge to early 2014 is that the date of the response by RPD’s solicitors to the letter of demand from the solicitors for the appellants asserting infringement by RPD by exercising the reproduction right, is 9 April 2014. In that letter, RPD’s solicitors assert that during the marketing campaign by the agencies, the images are provided to REA’s listing portal (platform) and RPD acquires the right to “use and display data and photographs” from, among others, REA, by virtue of RPD’s “specific contract with REA”, although that agreement was said to be “entirely irrelevant” to the rights asserted by the appellants. The relevant licence was said to be the licence granted by the agencies to REA on the terms quoted in the letter. Those terms, which presumably were the terms prevailing at 9 April 2014, are different in language and thus scope to the terms quoted by the primary judge at [12] (and quoted at [10] of these reasons). The terms of the licence said to have been granted by the agencies to REA are put this way in the letter:To the extent that any Contributions are proprietary in nature, you grant REA a worldwide, nonexclusive, royalty-free, perpetual, transferable and irrevocable licence to use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and display and publicly perform your Contributions throughout the world in any medium, whether currently in existence or not. You also grant each user of our websites a nonexclusive licence to use, reproduce, adapt, translate, distribute, prepare derivative works of, display and perform your Contributions as permitted by REA and these terms.You grant:(i)REA, in respect of Contributions to its website the right to use your name or the name you submit with the Contribution, and, the right to represent and warrant that:(a) you own and control all of the rights to the Contributions; or(b)you have the lawful right including all necessary licences, rights, consents, and permissions to use and authorise REA to display the Contributions.…(4)The terms quoted at (3) are said to be the “pertinent terms” agreed to between the agencies and REA. It is then said that the licence enables REA to transfer that licence and to use or distribute images to third parties including RPD. The letter does not seek to come to grips with identifying the basis upon which the agencies purport to have acquired rights from the appellants in the terms the agencies purport to confer on REA, that is, the foundational upstream grant. (5)So, it seems that there were four versions of the scope or content of the licence in issue before the primary judge. First, there was the appellants’ version that the works were to be used for the purpose of the marketing campaign for the sale or lease of the property for which the works were originated by Mr Hardingham which carried with it an authority conferred on the agencies to grant a sub‑licence for marketing the properties as earlier described, with the primary licence granted to the agencies and any sub‑licence coming to an end on completion of the marketing campaign. The other three versions are those contended for by the respondents. Thus, the second version is the version identified by the primary judge based on the REA “subscription agreement” (presumably based on the evidence of Mr Rechtman) set out in the particular text at [10] of these reasons: PJ, [12]. The third version is the version pleaded by REA which selects only some of the text identified by the primary judge in the text as quoted at [10] of these reasons. The fourth version is the text of the contended term quoted by RPD’s solicitors on 9 April 2014. That text is said to be a version of the sub‑licence granted by the agencies to REA and it seems to be said by RPD that the right in REA to grant a further sub‑licence (or transfer) informs the content of the licence granted by the appellants to the agencies and then to REA unless it is said that REA, by reason of the sub‑licence from the agencies, was free to further sub‑licence on any basis it saw fit irrespective of the scope of the grant conferred by the appellants on the agencies. In other words, on such a view, water does flow upstream. (6)The terms of the licence described in the letter of 9 April 2014 are more expansive than the REA Terms and Conditions quoted at [10] of these reasons and extend to the right to “create derivative works” and include words such as “modify”, “translate”, “publicly perform” and extend to works “whether currently in existence or not”. This more expansive text is not present in the version of the implied scope of the express oral licence based on the text of the licence granted to REA by the agencies in the terms and conditions identified by the primary judge at [12] (see [10] of these reasons). Nor is it the text pleaded by REA and, of course, it is entirely different to the version of the licence contended for by the appellants.(7)At [71], the primary judge observes that there is “direct evidence” that from at least early 2014 the appellants “in fact knew” that in order for the agencies to upload content to the REA platform, under REA’s Terms and Conditions, the agencies had to grant REA “an irrevocable, perpetual, world‑wide, royalty free licence to publish, copy, licence to other persons, use and adapt for any purpose related to [REA’s] business any content you [the agencies] provide to REA”; that the agencies had to agree not to upload content infringing third party intellectual property rights and to indemnify REA for loss or damage as a result of third party claims concerning uploaded content.(8)At [72], the primary judge finds that there is “direct evidence” that the appellants “knew” from at least early 2014 that an agreement existed between REA and RPD under which RPD was provided with content uploaded to the REA platform and that RPD made the works so obtained available to “paying subscribers to the [RPD product – “Professional”]” although “the [appellants] did ‘not know’ the precise terms of that agreement”. (9)The matters at (7) and (8) are said to “necessarily follow” from the content of the letter from RPD’s solicitors dated 9 April 2014 in response to the letter of demand from the appellants’ solicitors. However, there was no direct evidence as to whether the agencies in fact read REA’s Terms and Conditions: PJ, [66]; and no evidence of discussions by agencies with the appellants about any terms and conditions imposed by REA on the agencies. The appellants’ state of knowledge of REA’s Terms and Conditions seems to derive from the apparent “fact” that they “must have known that the works they had been commissioned to prepare had been and were being uploaded in accordance with the terms and conditions imposed by REA” ([emphasis added]: PJ, [67]) and although the appellants were found to “know” the things described at (7) and (8) before at least early 2014, the primary judge accommodates the possibility at [68] as an open question of fact that the appellants may not have read the REA Terms and Conditions even though they were “freely available on the realestate.com.au website”: PJ, [67]. (10)The letter of 9 April 2014 from which the conclusions described at (7) and (8) are said to “necessarily follow” is concerned with the contended terms upon which the agencies purported to confer on REA a bundle of rights to deal in and with the appellants’ works. It is true that from 9 April 2014 the appellants knew that RPD contended that the rights conferred on REA were those described in the precise language of the term quoted by RPD’s lawyers. The contention in the letter did not reduce to a matter of “fact” that REA had acquired in that way, in the terms contended, a licence of a right to exercise rights comprised in the copyright owned by Mr Hardingham. The rights contended for in the letter ultimately needed to be found in the primary grant by the appellants to the agencies coupled with a power in the agencies to grant a sub‑licence to REA in terms which enabled a grant to RPD in the terms claimed by RPD. Otherwise, REA had no standing to grant a further sub‑licence (or transfer of its own sub‑licence) to RPD. (11)At [74], the primary judge observes that it was in the context of the letter of 9 April 2014 that the appellants continued to “deal with the agencies” in respect of each of the 20 transactions by accepting requests and supplying the works. (12)At [75], the primary judge repeats some of the earlier findings and concludes that the appellants and the agencies “knew” that the works were being sought for a purpose which included uploading the works to the REA platform; those parties “knew” that this was to occur in accordance with REA’s “usual” Terms and Conditions; the appellants “knew” the “precise content and effect of the terms and conditions”; and the appellants in deciding whether to perform the work “dealt with the agencies with that knowledge”. (13)At [76], the primary judge examines a possible counter‑factual hypothesis to the effect that if the appellants had said to the agencies that they were not authorised to grant a sub‑licence to REA (presumably on the basis of the “precise content and effect” of the “usual” Terms and Conditions), the agencies may have retained a different photographer. (14)At [77], the primary judge observes that it was not commercially realistic for the agreement between the appellants and the agencies to be one in which the agencies did not have the authority to grant REA the licence which the appellants “knew the agencies had to give to REA in order to upload the works” sought by the agencies for that very purpose. (15)At [78], the primary judge reaches the ultimate conclusion that the “objective circumstances” concerning the 20 transactions, all of which occurred after 9 April 2014, are such that it is to be “inferred” from the conduct of the appellants and the agencies, including their course of dealings, that the appellants “agreed that the agencies were authorised, by way of licence from the [appellants], to upload the photographs and floor plans to the realestate.com.au platform and grant REA a licence in the form required by REA and contained in REA’s usual terms and conditions”. (16)The primary judge also concludes at [78] that in the alternative to the proposition at (15), “it should be implied into the agreements” between the appellants and the agencies, “in order to give business efficacy to those agreements”, that the appellants agreed in the same terms as the proposed inferred term set out at (15). (17)At [79], the primary judge concludes that the agreement between the appellants and the agencies would have failed to deliver what was “objectively intended” to be acquired by the agencies in commissioning the works if the term at [78] were not to be inferred or implied. The primary judge observes that the purpose of uploading the works to the REA platform was “central” to the “objective” sought to be achieved by the appellants and the agencies, and the objective could not have been achieved unless the agencies granted REA the licence contained in REA’s Terms and Conditions. The primary judge also notes at [79] that the agencies “could not lawfully grant the licence” on those terms unless the appellants had “authorised them to grant a licence of that scope”. (18)At [80], the primary judge said this:It follows that Mr Hardingham and REMA authorised, consented to or permitted (that is licensed) the agencies to sub‑licence the copyright works to REA on terms which permitted the agencies to grant the licence contained in REA’s usual terms and conditions, which included authorising REA to grant a sub‑licence. REA granted a sub‑licence to [RPD] which was not contended to go relevantly beyond what was permitted by the sub‑licence granted to REA by the agencies. Nor was it submitted that [RPD] acted beyond the scope of the sub‑licence granted by REA.