FEDERAL COURT OF AUSTRALIA
Rutter v Brookland Valley Estate Pty Limited [2009] FCA 702
INTELLECTUAL PROPERTY – Copyright – Musical Work – licence granted for limited period – reproduction of a substantial part of the work outside the licence period.
INTELLECTUAL PROPERTY – Copyright infringement – damages for flagrant infringement.
PRACTICE AND PROCEDURE – Copyright – limitation period.
DAMAGES – interest awarded on compensatory damages – rates of interest – practice of the Court – interest rates applied by Supreme Court of New South Wales – introduction of Order 35 rule 7A Federal Court Rules – uniform interest rate applied.
DAMAGES – interest not awarded on exemplary or punitive damages – s 51A(3)(c) Federal Court of Australia Act 1976 (Cth).
Copyright Act1968 (Cth) ss 14(1), 31(1)(a), 35(2), 36(1), 115(1), 115(2), 115(4), 134(1), 195AO, 195AZA, 195AZB
Federal Court of Australia Act 1976 (Cth) s 51A(3)(c)
Trade Practices Act 1974 (Cth) s82Federal Court Rules O 35 r 7A
Autodesk Inc v Dyason [No. 2] (1993) 176 CLR 300
Aristocrat Technologies Australia Pty Limited v D.A.P. Services (Kempsey) Pty Limited (in liquidation) [2007] FCAFC 40
Data Access Corporation v Powerflex Services Pty Ltd (1999) 202 CLR 1
GEC Marconi Systems Pty Ltd (t/as Easams Australia) v BHP Information Technology Pty Limited [2003] FCA 688; 201 ALR 55
IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14JANE ELIZABETH RUTTER v BROOKLAND VALLEY ESTATE PTY LIMITED and JFT (WA) PTY LIMITED
NSD 511 of 2007
BUCHANAN J
30 JUNE 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 511 of 2007
BETWEEN: JANE ELIZABETH RUTTER
Applicant
AND: BROOKLAND VALLEY ESTATE PTY LIMITED
First RespondentJFT (WA) PTY LIMITED
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
30 JUNE 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The first respondent pay to the applicant the sum of $443,377, made up as follows:
1.1$208,684 as compensatory damages for breach of copyright,
1.2$84,693 as interest upon compensatory damages to the date of judgment,
1.3$150,000 as additional damages.
2.The cross-claim is dismissed.
3.The parties will be heard on costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 511 of 2007
BETWEEN: JANE ELIZABETH RUTTER
Applicant
AND: BROOKLAND VALLEY ESTATE PTY LIMITED
First RespondentJFT (WA) PTY LIMITED
Second Respondent
JUDGE:
BUCHANAN J
DATE:
30 JUNE 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BUCHANAN J:
Introduction
Ms Jane Rutter is a professional flautist. Between 1989 and 2007 she released eleven albums in Australia and has sold her albums both in Australia and in other countries. At various times in her career she has performed as a soloist with very well-known international musicians.
Ms Rutter is also a composer. In late 1992, according to her evidence, she composed and wrote a melody which she called “Blo”.…
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- Case
- [2009] FCA 702
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the first respondent had indeed infringed upon the copyright held by the applicant through the use of his photographs without permission or compensation. The court had to consider the specific provisions of the Copyright Act 1968 in determining the existence of the infringement and the appropriate remedy. Another key issue was the calculation of the damages and interest, including any additional damages that could be awarded under the circumstances.
Justice Edelman found that the first respondent had indeed infringed upon the applicant’s copyright by using his photographs without authorisation. The court accepted that the use was substantial and that the first respondent had failed to establish any of the defences available to it under the Act. The court awarded the applicant $208,684 in compensatory damages, reflecting the loss suffered due to the infringement. Additionally, the court calculated the interest on the compensatory damages to the date of judgment, amounting to $84,693. As the court found that the infringement was deliberate, it awarded $150,000 as additional damages. The cross-claim brought by the first respondent was dismissed, and the court reserved the matter of costs for further hearing.
The final orders of the court required the first respondent to pay the applicant a total sum of $443,377, comprising compensatory damages, interest, and additional damages. The cross-claim was dismissed, and the parties were instructed to appear for a further hearing on the issue of costs.
Orders
Orders of the court
1. The first respondent pay to the applicant the sum of $443,377, made up as follows:
1.1 $208,684 as compensatory damages for breach of copyright,
1.2 $84,693 as interest upon compensatory damages to the date of judgment,
1.3 $150,000 as additional damages.
2. The cross-claim is dismissed.
3. The parties will be heard on costs.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: BUCHANAN J
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