Realestate.com.au Pty Ltd v Hardingham

The dispute before the High Court of Australia concerned alleged copyright infringement of photographs and floor plans created by Mr Hardingham and his company, Real Estate Marketing Australia Pty Ltd (collectively "H/REMA"), for real estate agencies. H/REMA had commissioned professional photographers to produce these materials for marketing properties for sale or lease. The agencies subsequently uploaded these materials to the platform operated by Realestate.com.au Pty Ltd ("REA"). REA, in turn, sub-licensed the copyright in these materials to RP Data Pty Ltd ("RP Data"), which then used them on its subscription website. H/REMA alleged that RP Data infringed its copyright.

The central legal issue before the court was the scope of the licence granted by H/REMA to the real estate agencies, and consequently, the scope of the sub-licence granted by the agencies to REA and RP Data. Specifically, the court had to determine whether the licence and the right to grant a sub-licence were limited to the period of the agency's marketing campaign for the sale or lease of a particular property, or if they extended beyond that period. This question was crucial in determining whether RP Data's use of the photographs and floor plans constituted copyright infringement.

The High Court reasoned that when dealing with informal contracts, the objective intention of the parties must be ascertained by considering the whole of the evidence, including their conduct, commercial aims, and surrounding circumstances. The court found that a reasonable observer would conclude from the conduct of H/REMA and the agencies, including what was said and not said, that there was a mutual understanding or agreement that the licence to use the works and the right to grant a sub-licence extended beyond the marketing campaign. This understanding was based on the evident commercial aims and expectations of the parties. Consequently, the court determined that RP Data did not infringe H/REMA's copyright.

The High Court allowed the appeals in part, setting aside the orders of the Full Court of the Federal Court of Australia. The court ordered that the appeals and cross-appeals be dismissed with costs, and that the first and second respondents (RP Data and REA respectively) pay the appellant's (H/REMA's) costs.