Pontello v Giannotis - [1989] FCA 680

CATCHWORDS

Copyright - defendant charged with havlng in his possession films, in whlch copyright subsisted, for the purpose of letting the films for hire or, by way of trade offering or exposing them for hire - films infringing copies of owners1 copyright - whether defendant knew or ought reasonably to have known that the films were infringing copies.

Copyright Act 1968, subsec. 132(2A)

Copyright - defendant convicted of an offence under subsec. 132(2A) of Copyright Act 1968 - consideration of appropriate penalty.

Copyright Act 1968, ss. 132, 133.

Crimes Act 1914, S. 20

Sydney-

JOHN PONTELLO V. DENNIS GIANNOTIS

NO. NG64 of 1989

Sheppard J.
25- and 26 July 1989

IN THE FEDERAL COURT OF AUSTRALIA ) ,
1 , .

NEW SOUTH WALES DISTRICT REGISTRY 1 No. NG64 of 1989 I ..
1 7 ,
GENERAL DIVISION )

BETWEEN:

k, .

JOHN PONTELLO i

Prosecutor . ~

AND :

. ,

DENNIS GIANNOTIS
:i

Defendant

r

NINUTES OF ORDER I. :
:

. CORAM: SHEPPARD J.

DATES : 25 and 26 JULY 1989

PLACE: SYDNEY
THE COURT ORDERS THAT:-

1.

The defendant be convicted for an offence under subsec. 132(2A) of the Copyright Act 1968.

2. Pursuant to S. 20 of the Crimes Act 1914 the defendant be released without sentence being passed upon him on his entering into a recognizance in the sum of $1,000 that he will:-

(a)

be of good behaviour for a period of three (3) years from today;

(b)

on or before 31 August 1989 pay to the informant the sum of $6,500 for his costs of the prosecution.

3. Pursuant to S. 133(4) of the Copyright Act 1968 there be delivered up to the Australasian Film and Vldeo Securrty

, .
L

Office for delivery to the varlous copyright owners the video films llsted in the schedule inltlalled and dated by Sheppard
J. and placed with the papers.

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

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY

) No. NG64 of 1989 I

.c
' >

GENERAL DIVISION !

BETWEEN:

JOHN PONTELLO

Prosecutor . .

AND :

, ,

DENNIS GIANNOTIS . .
,. .

Defendant 8 -
, .i

CORAM: SHEPPARD J.

DATE : 25 JULY 1989

REASONS FOR JUDGMENT

HIS HONOUR: In this matter the defendant is charged with an offence under subsec. 132(2A) of the Copyright Act 1968 ("the Act"). So far as it is relevant, the subsection provides that a person shall not, at a time when copyright subsists in a work,

exposing for hire the article, if the person knows or ought have in his or her possession an article for the purpose of, inter alia, letting for hire or by way of trade offering or

reasonably to know the article to be an infringing copy of the work. The charge is that the defendant did, on or about 31 May 1988 at Harris Park in the State…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pontello v Giannotis

Details

AGLC: Pontello v Giannotis [1989] FCA 680
Case: [1989] FCA 680
Decision Date: 25 JULY 1989

CaseChat Overview and Summary

In the matter of Pontello v Giannotis, the defendant Dennis Giannotis was charged with an offence under subsection 132(2A) of the Copyright Act 1968 for having in his possession cinematograph films that were infringing copies of copyrighted works, with the intent to let them for hire. The principal issue was whether the defendant knew or ought reasonably to have known that the films were infringing copies. The court found that the defendant had been in the video business for seven years, had knowledge of copyright and pirate copies, and had equipment in his shop that could be used to copy videos. The court concluded that the defendant ought reasonably to have known that the films were infringing copies. The court also considered the penalty for the offence, taking into account the defendant's cooperation with the police and the seriousness of the offence. The court decided to release the defendant without sentence being passed upon him, on the condition that he enter into a recognizance in the sum of $1,000 to be of good behaviour for three years and pay the informant's costs of the proceedings. The court also ordered that the infringing films be delivered to the Australasian Film and Video Security Office for delivery to the copyright owners.

The court's decision in this case highlights the importance of knowledge in copyright infringement cases. The court found that the defendant's knowledge of copyright and pirate copies, as well as his possession of equipment that could be used to copy videos, was sufficient to establish that he ought reasonably to have known that the films were infringing copies. The court's decision also emphasizes the need for video shop owners and employees to be familiar with copyright law and the consequences of copyright infringement. The court suggested that the Australasian Film and Video Security Office prepare a simple explanation of copyright in films and provide it to video shop owners and employees to help prevent future copyright infringement cases.

Orders