PPCA v Camilleri
[2012] FMCA 147
•15 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PPCA & ORS v CAMILLERI | [2012] FMCA 147 |
| PRACTICE AND PROCEDURE – Application – summary judgment. COPYRIGHT – Musical work – where music played from jukebox without payment of licence fees – where moneys paid after proceedings brought – whether applicant has copyright – whether copyright infringed – damages – whether to grant injunction. |
| Federal Magistrates Court Rules 2001, rr.13.03B, 13.07 Copyright Act 1968, ss.115(4), 126 |
| Foxtel Management Pty Ltd v The Mod Shop Pty Ltd [2007] FCA 463 Phonographic Performance Company of Australia Limited & Ors v Jabouri Brothers Pty Ltd & Ors [2011] FMCA 799 Raben Footwear Pty Ltd v Polygram Records Inc & Ors [1997] 145 ALR 11 Autodesk Australasia Pty Ltd & Cheung v Cheung [1990] 17 IPR at 76 |
| Applicants: | PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED (ACN 000 680 704) AND OTHERS |
| Respondent: | ALAHANA CAMILLERI |
| File Number: | SYG 2622 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 15 February 2012 |
| Date of Last Submission: | 15 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2012 |
REPRESENTATION
| Counsel for the Applicants: | Mr Balafoutis |
| For the Respondent: | No appearance |
ORDERS
The Respondent, whether by herself, her servants, agents or otherwise, be permanently restrained from causing or authorising any sound recordings licensed to the First Applicant (being those sound recordings recorded under the labels listed at being heard in public, without the licence of the First Applicant or the respective copyright owners(s).
The Respondent shall pay the First Applicant the sum of $30,000.00 pursuant to s115(4) of the Copyright Act 1968 (Cth) (Act).
The Respondent to pay the Applicants’ costs and disbursements of and incidental to the Application and Application in a case, fixed in the sum of $8,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2622 of 2011
| PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED (ACN 000 680 704) AND OTHERS |
Applicants
And
| ALAHANA CAMILLERI |
Respondent
REASONS FOR JUDGMENT
On 16 November 2011 the applicants, who are a collection society and the copyright owners for whom it collects license payments for the playing of recorded music in various forms, commenced proceedings against Ms Camilleri arising out of her consistent failure to make payment of the appropriate license fees for a jukebox in premises which she controlled known as “X on Albert” situated at 196 Albert Street, Sebastopol, Victoria 3350. The application was supported by affidavit from Lynne Small and Tina Redwood.
The respondent did not file a Notice of Appearance and was not present when the matter was first called before me for a directions hearing on 13 December 2011. On that date I made a number of orders the three most relevant ones being:
i)“The court notes that the respondent to the application has now been served with the application and supporting affidavits.
ii)The respondent is to file and serve on the applicants a response to the application no later than 27 December 2011.
iii)In default of compliance with order (2) the applicants may have leave and liberty to apply for default judgment.”
The respondent has not filed a response and so the applicants filed an Application in a Case (a Notice of Motion) dated 13 January 2012 seeking:
i)“Pursuant to Rule 13.03B in the Federal Magistrates Court Rules 2001, default judgment against the respondent.
ii)In the alternative, pursuant to Rule 13.07 in the Federal Magistrates Court Rules 2001 summary judgment against the respondent.”
Rule 13.03B of the Federal Magistrates Court Rules 2001[1] deals with orders on default and allows the court at (d) to give judgment or make any other order against the respondent. Rule 13.07 of the Rules deals with disposal of a matter by way of summary judgment and is in the following form:
[1] “Rules”
“13.07 Disposal by summary judgment
(1) This rule applies if, in a proceeding:
(a) in relation to the whole or part of a party’s claim there is evidence of the facts on which the claim or part is based; and
(b) either:
(i) there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim or part; or
(ii) the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or part.
(2) The Court may give judgment on that claim or part and make any orders or directions that the Court considers appropriate.
(3) If the Court gives judgment against a party who claims relief against the party obtaining the judgment, the Court may stay execution on, or other enforcement of, the judgment until determination of that claim.”
Because of the very thorough manner in which this collection society has on this occasion and in the past dealt with matters, I prefer to give summary judgment under r.13.07, because I believe there is sufficient evidence before me to satisfy me that the judgment should be entered against the respondent.
Mr Balafoutis, who appears on behalf of the applicants, has provided me with some very helpful submissions. His outline of submissions paraphrases the affidavits in support and provides the court with authorities for the proposed orders. I intend to leave the outline with the file so that it can be seen clearly the basis upon which the orders have been made. But I am sensible of the requirement to make it clear in these reasons how I have come to my decision.
Ms Camilleri was the principal shareholder and director in two companies that operated the venue “X on Albert”. The first company was known as “X on Albert Pty Ltd”. But that company ceased operations by about 2006 and thereafter the venue was operated by a company known as “Airellimac Pty Ltd”. That company was deregistered on 5 March 2010. Ms Camilleri was the sole director and shareholder of that company and the affidavit evidence of the investigations and communications between the applicants and Ms Camilleri reveals that she was at all material times the person in charge. It seems to me that since the deregistration of the second company Ms Camilleri has been the operator of the venue and therefore the person primarily responsible for any infringements of copyright that may have occurred.
The collection society has been on Ms Camilleri’s case for some years. The venue had a jukebox from which recorded music was played throughout the venue. There is no record of any license fees being paid despite demands being made from 2003. In case it should be suggested that the collection society has acted in a less than diligent manner it should be noted that the fee for a jukebox of this nature is only about $100.00 per annum. Collection societies are not over-endowed with funds for enforcement. In any event, by November 2010 the society had run out of patience with Ms Camilleri and contacted Ms Camilleri to advise her that an inspector would attend the venue. During the course of the telephone conversation on 8 November 2010 Ms Camilleri confirmed that there was a jukebox on the premises and on 22 November 2010 the society sent a letter to Ms Camilleri enclosing an invoice in the sum of $441.87. It is at this stage that the conduct of Ms Camilleri became particularly egregious because, after some communication with the supplier of the jukebox, that supplier sent to Ms Camilleri, on 6 December 2010, the sum of $250.00 and on
11 February 2011 the sum of $191.00, making up the total of $441.00 required for the license and for some years arrears. But Ms Camilleri did not pass this money on to the society. She kept it. And she continued to refuse to make any payment to the society or respond to their correspondence. In May 2011 the society requested that Ms Redwood, an auditor from a company known as “Mystery Shopping Auditing Australasia”, attend the premises and provide information as to the music being played there. She did this as set out in her affidavit and noted that records by Green Day, The Beatles, George Michael, Cold Chisel, The Living End and The Veronicas were all played. The copyright owners of those records are all represented by the collection society and I am satisfied from the evidence that has been provided to me that those records were played.
During the course of 2011 there was further correspondence from the society to Ms Camilleri preparatory to the issue of proceedings. All Ms Camilleri had to do was to pay the license fee and arrears demanded, a very small sum of money that she had already received, and agree to keep a license in currency. If she had done that it would have been an end to the matter. But she did not and so these proceedings were issued. After the proceedings were issued, and after the directions hearing, Ms Camilleri sent to the society $1,200.00 but by then the society had incurred substantial costs. Ms Camilleri did not indicate how the money was to be accounted for and the society wrote to her advising her that it would be held generally to her account and that the society continued its claim for damages, costs and additional damages.
The claims made by the applicants are brought under s.115 of the Copyright Act 1968[2]. The first thing the court must be satisfied of is that the applicants have copyright. Under s.126 of the Act there are two presumptions in relation to the existence of copyright as set out:
[2] “Act”
“Presumptions as to subsistence and ownership of copyright
In an action brought by virtue of this Part:
(a) copyright shall be presumed to subsist in the work or other subject-matter to which the action relates if the defendant does not put in issue the question whether copyright subsists in the work or other subject-matter; and
(b) where the subsistence of the copyright is established--the plaintiff shall be presumed to be the owner of the copyright if he or she claims to be the owner of the copyright and the defendant does not put in issue the question of his or her ownership.”
Ms Camilleri has not put in issue the question of whether copyright subsists in the works and the applicants claim to be the owners of that copyright. Evidence to this effect is contained in the affidavit of Ms Small filed 16 November 2011 in paragraphs 37 to 38 and there are annexures to the affidavit of Ms Redwood which indicate that the various record labels are of those which produced the music in question. I am satisfied that I am entitled to apply these presumptions, that copyright subsists in each of the records referred to as having been played in the affidavit of Ms Redwood, and that the society and its members, who are the copyright owners of those records, are entitled to bring these proceedings. As there has never been any suggestion by Ms Camilleri that recorded music has not been played in her venue since about 2003, or that such recorded music is music that is not part of the remit of the society, I am also satisfied that I may infer that Ms Camilleri, by herself or for her companies, has been infringing copyright since about 2003.
The substantive claim in this case is for damages under s.115(4) of the Copyright Act which is in the following form:
(4) Where, in an action under this section:
(a) an infringement of copyright is established; and
(b) the court is satisfied that it is proper to do so, having regard to:
(i) the flagrancy of the infringement; and
(ia) the need to deter similar infringements of copyright; and
(ib) the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff's copyright; and
(ii) whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form; and
(iii) any benefit shown to have accrued to the defendant by reason of the infringement; and
(iv) all other relevant matters;
the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.”
I have no doubt that the infringements to which I have referred in these reasons were known to Ms Camilleri by virtue of the long history of correspondence between the society and herself. And thus it is appropriate to consider payment by her of additional damages.
In Mr Balafoutis’ submissions he provides the court with a series of cases decided both by this court and by the Federal Court where additional damages have been awarded. These damages have been as high as $300,000.00 in Foxtel Management Pty Ltd v The Mod Shop Pty Ltd [2007] FCA 463 and as low as $30,000.00 in the recent case of Phonographic Performance Company of Australia Limited & Ors v Jabouri Brothers Pty Ltd & Ors [2011] FMCA 799. It is now clear that additional damages is an independent head of relief beyond the objective compensation for the copyright owner; Raben Footwear Pty Ltd v Polygram Records Inc & Ors [1997] 145 ALR 11 at [6]. So just because the total amount of a license fee that could be obtained is small the additional damages need not reflect this.
The first matter I am required to consider is the flagrancy of the infringement. This includes what was described by Wilcox J in Autodesk Australasia Pty Ltd & Cheung v Cheung [1990] 17 IPR at 76 as “deliberate and calculated copyright infringement”. The evidence put before me of the many years during which Ms Camilleri has failed to pay the license fees and ignored the entreaties of the society can only suggest a deliberate and calculated decision not to abide by the law. The second matter is the need to deter similar infringements. Because the whole purpose of the insertion of s.115(4) into the Act was to make it clear that copyright infringement is not a matter to be tolerated I am quite satisfied that such a need exists. This court has sat in copyright matters for some years now and, despite handing down substantial judgments for additional damages, infringements continue to occur. So it is necessary to make an example of those persons who deliberately act in contravention.
The third matter is the conduct of the defendant after the act constituting the infringement or after the defendant was informed that the defendant had allegedly infringed a copyright. The evidence that I have is that Ms Camilleri was aware of the infringements from 2003 and has done absolutely nothing about it until the day after the directions hearing in this matter which she also did not bother to attend. She was aware at all stages of what the society was intending to do and she could have prevented it. Her conduct in this regard is, to my mind, worthy of criticism. The infringement did not involve the conversion of a work but Ms Camilleri did obtain an unusual benefit by reason of her infringement. She did not only not pay the license fee required but she pocketed the license fee that was provided to her by the jukebox company. So she received a double benefit. I would also take into account as another relevant matter Ms Camilleri’s silence in respect of these court proceedings. No one can be forced to attend a court to defend a civil process of this type but by ignoring the court a party weakens the social compact that exists between all citizens in which the rule of law is a fundamental stanchion. It does not take much to enter an appearance and even less to write a letter. This court has a reputation for allowing parties to appear by telephone, if necessary, and like all courts today provides video conference facilities. The fact that Ms Camilleri is in Victoria is of no consequence.
The applicants seek orders which would effectively prevent Ms Camilleri at her venue from utilising the jukebox because it would injunct her from broadcasting any music over which the collection society and its members have copyright. Should she breach that injunction she would be liable for contempt proceedings, thus the remedy is a serious one. It is one I think the court should provide but I take it into account when considering the extent of the damages under s.115(4) that I propose to order. No request has been made for compensatory damages presumably because they will have been absorbed by the $1,200.00 payment.
The society also wishes me to assess the costs in the sum of $8,200.00. To my mind this is an extraordinarily generous offer given the efforts that the society had to make in order to bring these proceedings but I will accede to that request.
In regard to the damages under s.115(4) the society suggests the sum of $30,000.00 which is the amount ordered by Driver FM in Jabouri which is a similar case to this. As I advised Mr Balafoutis the court reads the papers prior to the coming on to the bench in matters of this nature and indeed prior to receiving his helpful outline of submissions. Having read those papers I had independently come to a figure almost identical to his. I believe that an award in that sum is appropriate.
It should also be made clear to Ms Camilleri that the payment of the $1,200.00 did not grant her a license. The money was paid only after commencement of proceedings. There is no obligation upon the society to grant the license and, in the circumstances of this particular case, one can quite understand why they would not. I would therefore make the orders contained in the draft initialled by me and placed with the papers. Those representing the society and the applicants would be aware of the requirement to endorse the orders, which otherwise will have no effect in terms of contempt.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 2 March 2012
2
2
2