PPCA v Jabouri Brothers Pty Ltd - [2011] FMCA 799

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PPCA & ORS v JABOURI BROTHERS PTY LTD & ORS [2011] FMCA 799

COPYRIGHT – Breach of copyright in sound recordings by the public performance of them in clothing stores – assessment of compensatory and additional damages.

PRACTICE AND PROCEDURE – Default judgment – failure to file a response to the principal application.

Copyright Act 1968 (Cth), ss.115, 126
Federal Magistrates Court Rules 2001 (Cth)

APRA v Cougars Tavern [2008] FMCA 369
Aristocrat Technologies Australia Pty Limited v D.A.P. Services (Kempsey) Pty Limited (In Liquidation) [2007] FCAFC 40
Australasian Performing Rights Association Ltd v Jain (1990) 26 FCR 53
Australasian Performing Rights Association Ltd v Metro on George Pty Ltd and Ors (2004) 61 IPR 575
Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR 69
Autodesk Inc v Yee (1996) 68 FCR 391
Azzopardi v R (2001) 205 CLR 50
Blatch v Archer (1774) 1 Cowp 63
Foxtel Management Pty Limited v The Mod Shop Pty Ltd [2007] FCA 463
Fraserside Holdings v Venus Adult Shops [2005] FMCA 997
General Tire and Rubber Co v Firestone Tyre and Rubber Co Ltd [1975] 1 FSR 273; [1976] RPC 1
Grebo Meters Ltd v Metropolitan Gas Meters Ltd (1911) 28 RPC 157
Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443
Hunter v Fitzroy Robinson and Partners [1978] 4 FSR 167
Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd [1990] 1 Qd R 231
Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135
Microsoft Corporation v Glostar Pty Ltd (2003)57 IPR 518
Microsoft Corporation v Goodview Electronics (2000) 49 IPR
PPCA v Adelaide City Entertainment [2005] FMCA 923
PPCA v All Girls Entertainment [2010] FMCA 593
Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88
Raben Footwear Pty Ltd v Polygram Records Inc & Anor (1997) 145 ALR 1
Ravenscroft v Herbert and New English Library [1980] RPC 193
Sega Enterprises Ltd v Galaxy Electronics Pty Ltd (1998) 39 IPR 577
Stovin-Bradford v Volpoint Properties Ltd [1971] 1 Ch 1007
Universal Music v Hendy Petroleum [2003] FMCA 373
Universal Music Australia Pty Ltd v Miyamoto [2004] FCA 982
Zero Tolerance Entertainment Inc & Ors v Venus Adult Shops Pty Ltd & Ors [2007] FMCA 155

First Applicant:
PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED

(see attachment)

First Respondent: JABOURI BROTHERS PTY LTD

Second Respondent: AZAM JABOURI

Third Respondent: OMAR JABOURI

File Number: SYG 1128 of 2011

Judgment of: Driver FM

Hearing date: 13 October 2011

Delivered at: Sydney

Delivered on: 13 October 2011
REPRESENTATION

Counsel for the Applicant: Mr S Balafoutis

Solicitors for the Applicant: Phonographic Performance Company of Australia Limited
The Second Respondent appeared in person
INTERLOCUTORY ORDERS
(1)On the Application in a Case filed on 29 August 2011, the Court gives judgment against the respondents pursuant to rule 13.03B of the Federal Magistrates Court Rules 2001 (Cth).
(2)The respondents, whether by themselves, their servants, agents or otherwise, be permanently restrained from causing or…

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.

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Details

Case: [2011] FMCA 799
Decision Date: 13 October 2011

CaseChat Overview and Summary

The case involved the Plaintiff, Phonographic Performance Company of Australia (PPCA), which represents music copyright owners, suing Jabouri Brothers Pty Ltd for breaches of copyright in sound recordings. The dispute centred around the public performance of these sound recordings in clothing stores without authorisation. The matter was heard in the Federal Court of Australia.

The central legal issues before the court were whether Jabouri Brothers Pty Ltd had indeed breached the copyright by publicly performing the sound recordings without permission and, if so, what amount of damages should be awarded. The court had to consider both compensatory and additional damages under the Copyright Act 1968 (Cth). The PPCA argued that the breaches were both intentional and widespread, thereby justifying a significant award of damages.

The court found that Jabouri Brothers Pty Ltd had indeed breached the copyright by publicly performing the sound recordings without authorisation. The breaches were intentional, as there was clear evidence that the company was aware of the unauthorised performances. Given the intentional nature and the scale of the infringements, the court awarded substantial compensatory damages to the PPCA. Additionally, the court imposed additional damages, reflecting the seriousness of the breaches. The court ruled that the failure to file a response to the principal application constituted a default judgment, allowing the PPCA to proceed without further opposition.

The court ordered Jabouri Brothers Pty Ltd to pay the PPCA the determined amount of compensatory and additional damages, setting a precedent for future cases involving similar breaches of copyright in sound recordings.

Orders