FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hoser v Georges (No 2) [2024] FedCFamC2G 243
File number(s): MLG 2313 of 2022 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 15 March 2024 Catchwords: INTELLECTUAL PROPERTY – moral rights – right of integrity of authorship provided for by s 195AI of the Copyright Act 1968 (Cth) (Copyright Act) – whether statements made about the contents of an author’s literary works (works) and about the author that prejudices the author’s honour or reputation constitute the doing of an act in relation to the works within the meaning of s 195AJ(b) of the Copyright Act and, for that reason, constitute the subjection of the works to derogatory treatment within the meaning of s 195AI(2) and, for that reason, constitute an infringement of the author’s right of integrity of authorship in respect of the works provided for by s 195AI – such statements do not constitute the doing of anything in relation to the works – s 195AI is concerned with the prevention of acts done to or with a work – the applicant does not have reasonable prospects of successfully prosecuting the proceeding based on the infringement of his right of integrity of authorship in respect of the works – proceeding dismissed. Legislation: Copyright Act 1968 (Cth) ss 10, 22(1), 31(1)(a), 31(1)(b), 32, 189, 193, 195AC, 195AI, 195AJ, 195AQ, 195AS
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 22.09, Sch 2
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Autodesk Inc v Dyason [1992] HCA 2
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408
Hollinrake v Truswell [1894] 3 Ch 420
Hoser v Georges [2023] FedCFamC2G 550
IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14
Korolak v Campbell (No 3) [2024] FedCFamC2G 148
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2010] FCA 44
Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
Division: General Number of paragraphs: 52 Date of last submission/s: 30 January 2024 Date of hearing: 12 October 2023 Place: Sydney The Applicant: Appeared in person, by telephone Counsel for the First and Seventh Respondents: Ms L Davis, by video Solicitor for the First and Seventh Respondents: Meridian Lawyers Solicitor for the Second, Third, Fourth, Fifth and Eighth Respondents: Ms N Wilson of CIE Legal, by video Solicitor for the Sixth Respondent: Mr M Swinn of King Wood Mallesons, by telephone
Table of Corrections 16 April 2024 In the appearances section of the cover page:
1. Add under the words “The Applicant: Appeared in person by video”…
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- AGLC
- Hoser v Georges (No 2) [2024] FedCFamC2G 243
- Case
- [2024] FedCFamC2G 243
- Decision Date
CaseChat Overview and Summary
The legal issues at the heart of the case revolved around the interpretation and application of sections 195AI and 195AJ of the Copyright Act. Specifically, the court needed to decide if the defendants' statements about the contents of the plaintiff's works and about the plaintiff himself constituted acts done in relation to the works, as defined by section 195AJ(b). If so, the court had to determine whether these acts constituted derogatory treatment of the works under section 195AI(2), thus infringing the plaintiff's right of integrity of authorship.
The court concluded that the defendants' statements did not constitute acts done in relation to the plaintiff's works. The court reasoned that section 195AI is concerned with acts done to or with a work, and the defendants' statements were merely expressions of opinion and did not involve any physical or direct action on the works themselves. Therefore, the plaintiff did not have reasonable prospects of successfully prosecuting the proceeding based on the alleged infringement of his moral rights. Consequently, the court dismissed the proceeding.
In light of the dismissal, the court ordered that the proceeding be dismissed pursuant to section 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The plaintiff was also ordered to pay the respondents' costs. Additionally, the respondents were granted liberty to apply within 35 days for an order setting their costs in accordance with Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), or alternatively, for an order pursuant to rule 22.09 of the General Federal Law Rules that their costs be set or assessed otherwise than in accordance with Schedule 2.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. Pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the proceeding is dismissed.
2. The applicant pay the respondents’ costs.
3. The respondents have liberty to apply within 35 days for an order that their costs be set in accordance with Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) or, in the alternative, for an order pursuant to r 22.09 of the GFL Rules that their costs be set or assessed otherwise than in accordance with Schedule 2 to the GFL Rules.
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
The Berne Convention was revised in Brussels in 1948, which included a revision of Art 6bis as follows (deletions and underlining added):[9](1) Independently of the authors’ copyright, and even after the transfer of the said copyright, the author shall have the right, during his lifetime, to claim authorship of the work and to object to any distortion, mutilation or other modification of alteration thereof, or any other action in relation to the said work which would be prejudicial to his honour or reputation.(2) In so far as the legislation of the countries of the Union permits, the rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the copyright, and shall be exercisable by the persons or institutions authorised by the said legislation. The determination of the conditions under which the rights mentioned in this paragraph shall be exercised shall be governed by the legislation of the countries of the Union.(3) The means of redress for safeguarding these the rights granted by this Article shall be regulated by the legislation of the country where protection is claimed.[9] This is the text as published by BIRPI The Berne Convention was further revised in 1967 in Stockholm, which included the further modifications of Art 6bis (deletions and underlining added)::[10](1) Independently of the author’s copyright economic rights, and even after the transfer of the said copyright rights, the author shall have the right during his lifetime, to claim authorship of the work and to object to any distortion, mutilation or other alteration thereof, modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.(2) In so far as the legislation of the countries of the Union permits, the rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the copyright, and shall be exercisable by the persons or institutions authorised by the said legislation. The determination of the conditions under which the rights mentioned in this paragraph shall be exercised shall be governed by the legislation of the countries of the Union.The rights granted to the author in accordance with the preceding paragraph shall, after his death, he maintained,at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However,those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.(3) The means of redress for safeguarding the rights granted by this Article shall be regulated by the legislation of the country where protection is claimed.[10] Text downloaded from WIPO website: WIPO Lex, Treaties, Stockholm Act (1967)