Insight SRC IP Holdings Pty Ltd v Australian Council for Educational Research Ltd

Insight SRC IP Holdings Pty Ltd and Insight Holdings Pty Ltd brought an action against the Australian Council for Educational Research Ltd (ACER) for copyright infringement. The plaintiffs sought both nominal and general damages. The case revolved around the ownership of the copyright and whether the plaintiffs were entitled to damages beyond the nominal amount. The court examined the documentary evidence and the testimonies of the witnesses to determine the ownership of the copyright. The court also looked at whether Insight SRC IP Holdings Pty Ltd and Insight Holdings Pty Ltd were entitled to general damages, given that they did not exploit the copyright directly but supported a bare licensee who did.

The legal issues before the court included the measure of damages for copyright infringement under the Copyright Act 1968 (Cth) s 115(2), whether the copyright owner was entitled to general damages when they did not exploit the copyright directly, and whether the measure of general damages is the loss in the hands of the bare licensee. Additionally, the court needed to determine if the sub-assignee had a sufficient genuine commercial interest in enforcing the original assignor's claims, especially since the copyright and the right to sue for past infringement had been assigned to a trust when the assignor was unaware of the infringement by the third party. The court also had to consider the appeal against the primary judge's credibility-based findings at the trial, given that no fresh evidence was adduced and the full record of the trial was not before the appellate court.

The court found that the primary judge erred in making certain findings, particularly regarding the credibility of the witnesses and the documentary evidence. The appellate court held that the primary judge's findings were open to him and that ACER had not demonstrated that there was an error. The court also noted that the documentary evidence on which ACER relied was equivocal or ambivalent, and the primary judge contextualised it in a manner that was open to him. The appellate court emphasised that unless there was something to indicate otherwise, the power to exercise appellate powers was for the correction of error. The court further determined that Insight SRC IP Holdings Pty Ltd and Insight Holdings Pty Ltd were entitled to general damages, as Dr Hart had acted to ensure that Insight exploited the copyright under the bare licence.

The court allowed the appeal, dismissed the cross-appeal, and directed the parties to file agreed orders as to costs and the quantum of general damages. If the parties could not agree, the court outlined a process for the parties to file proposed draft orders and written submissions, with an opportunity for further oral submissions if necessary.