Robinson v Sands & McDougall Pty Ltd - [1916] HCA 51

ROBINSON

SANDS &McDOUGALIA PROPRIETARY Copyright-Infringement-Original literary work-Map-Exemption from liability

to pay damages-- Knowledge of existence of copyright-Name of author on map -Copyright Act 1912 (No. 20 of 1912), Schedule-Comyright Act 1911 (1 &2 SYDNEY,

Geo. v. c. 46), secs. 1, 2, 5, 6, 7, 8, 31, 35. Aug. 29, 30, 31; Sept. 1.

The word "original" in sec. 1 (1) of the Copyright Act 1911 means "not MELBOURNE,

copied," "not imitated." Sept. 14.

Held. therefore, that a map which is produced by a cartographer applying his faculties to the best sources of information within his reach, and which is in no sense a copy but presents points of difference from previous maps according to the use to which he purposes to apply it, is an original literary work within the meaning of sec. 1 (1), and entitled to copyright.

22 CLR 125

If a name purporting to be that of the plaintiff as author appears upon a published map the defendant in an action for infringement, although not otherwise aware that copyright subsists in the map, is not relieved from liability in damages and accounts by sec. 8 of the Act.

HEARING of action.

The plaintiff, Herbert Edward Cooper Robinson, a resident of Sydney in New South Wales, brought an action in the High Court against Sands &McDougall Proprietary Ltd., a company registered in Victoria and carrying on business at Melbourne in that State, for infringement of his copyright in a map.

The action was heard before Barton J., and the material facts and arguments appear in his judgment hereunder.

Flannery, for the plaintiff. Schutt and Bavin, for the defendants.

Cur. adv. vult.

BARTON J. read the following judgment This is an action in which the plaintiff sued the defendants for infringement of his copyright in a map first published by him. He claims an in- junction, delivery up of all infringing publications in the defen- dants' possession, an inquiry as to damages, and an account of profits. Of course, he cannot have both the inquiry and the account. The defence puts the plaintiff to proof of his copy- right, denies the alleged infringement, and pleads that at the date of the publication by them the defendants were not aware that copyright subsisted in the plaintiff's map.

The Commonwealth Copyright Act No. 20 of 1912 adopts, with some alterations not material to this* case, and with machinery provisions adapting it to Australia, the Act of the United Kingdom 1 &2 Geo. v. c. 46, known as the Copyright Act 1911. This Act is the Schedule to the Australian Act.

Its provisions, SO far as they are material to this case, are shortly as follows :-

Sec. 1 (1) - Subject to the provisions of this Act, copyright shall subsist throughout the parts of His Majesty's dominions to which this Act extends

in every original literary

22 CLR 126

dramatic musical and artistic work, if (a) in the case of a pub-

lished work, the work was…

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: [1916] HCA 51
Decision Date: 14 September 1916

CaseChat Overview and Summary

In this case, the plaintiff, Herbert Edward Cooper Robinson, a mapmaker from Sydney, sued the defendant, Sands & McDougall Proprietary Ltd., a Melbourne-based publisher, for infringing his copyright in a map. Robinson sought an injunction, delivery up of infringing copies, an inquiry as to damages, and an account of profits. The defendant denied infringement and claimed they were unaware of the copyright's existence at the time of publication. The action was heard in the High Court of Australia before Barton J.

The court was required to determine two primary legal issues. Firstly, whether the plaintiff's map constituted an "original literary work" as defined by the Copyright Act 1911 (and adopted by the Commonwealth Copyright Act 1912), thereby entitling it to copyright protection. Secondly, the court had to consider the defendant's defence of lack of knowledge of copyright subsisting in the work, as provided for under section 8 of the Act, and whether this defence absolved them from liability for damages and an account of profits.

Barton J. held that the word "original" in the Copyright Act 1911 meant "not copied" or "not imitated." He reasoned that a map produced by a cartographer applying their faculties to the best available sources, and which presents points of difference from previous maps, is an original literary work and thus entitled to copyright. The court found that the defendant's maps were largely copied from the plaintiff's map, constituting wholesale piracy. Regarding the defence of lack of knowledge, the court found that the presence of the plaintiff's name on the map, purporting to be the author, provided prima facie evidence of authorship and ownership under section 6(3)(a) of the Act. The defendant's manager admitted seeing the plaintiff's name and that the map was not a copy, yet proceeded with publication. Consequently, the court found that the defendant had failed to prove they were not aware and had no reasonable ground for suspecting copyright subsisted in the work.

The court found in favour of the plaintiff, granting an injunction, ordering the delivery up of all infringing copies of the maps, and an account of profits. The plaintiff was awarded costs.

Orders