Taypar Pty Ltd v Santic

Re: TAYPAR PTY LTD
And: BENKO SANTIC
No. QLD G293 of 1988
FED No. 832
Copyright

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)

CATCHWORDS

Copyright - infringement - qualitative assessment of similarities - whether appropriation of idea or concept or of expression of that concept.

Copyright - assignment - house plans and display home - designer "relinquishing" copyright "to" builder for a fee - whether assignment effected - whether any necessary form.

Copyright - ownership - whether assignee entitled to sue for infringements committed prior to assignment.

Copyright - defences - design applied industrially - whether house "an article".

Copyright Act 1968 ss. 10, 31, 32, 74, 77, 115 and 196.

Copyright Regulations reg. 17

HEARING

BRISBANE

#DATE 21:12:1989

Counsel for applicant: Mr M. Hinson
instructed by: Davoren Associates, Solicitors

Counsel for respondent: Mr M. Amerena
instructed by: English & Company, Solicitors

ORDER

The application be dismissed, with costs.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

This is an application for infringement of copyright. Both the ownership of the copyright and infringement are in issue.

The applicant, Taypar Pty Ltd ("Taypar"), is a builder, carrying on business under the business name Jupiter Homes. The respondent is also a builder.
Taypar claims to be the owner of the copyright in a plan labelled "Drawing 87.404", and described as "Jupiter Homes Display Home at Lot 53 Drayton Terrace, Mermaid Waters", a house plan entitled "Reflections", and a building constructed at Lot 53 Drayton Terrace, Mermaid Waters. The claim of the applicant, in paragraphs 3, 4 and 5, is that the respondent has infringed its copyright in each of the above plans and building by, without the licence or authority of the applicant:-

"reproducing or authorising the reproduction of the said work in a material form in a plan entitled 'Proposed residence Lot 405 Pebble Beach Drive Runaway Islands, for Mr. B. Santic'"

and by:-

"reproducing or authorising the reproduction of the said work in a material form by the construction of a building at Lot 405, Pebble Beach Drive, Runaway Islands in the State of Queensland."

The Statement of Claim alleges that the infringements were flagrant in that the respondent was aware, or alternatively had reasonable grounds for suspecting, that the acts pleaded in paragraphs 3, 4 and 5 constituted an infringement of the applicant's copyright. This assertion, which directs attention to one of the relevant considerations in the award of additional damages under s. 115(4) of the Copyright Act 1968, is traversed in the defence.
The application claimed, inter alia, injunctive relief and damages for infringement, but the claim for injunctive relief was not pursued at the hearing.
The author of the drawing of the house plan in which the applicant claims copyright was a Mr. Robin Butt of the firm Hancox Butt, and the building at Lot 53 Drayton Terrace is a reproduction in a material form of the drawing and home plan. The firm Hancox Butt was engaged by the applicant to produce the drawing and home plan, and the applicant admits that the engagement was not by way of contact of service. The applicant claims that it acquired the copyright subsisting in the drawing and plan by assignment from Hancox Butt, the assignment being constituted by documents dated 24 March 1988.
These documents consist of a letter on the letterhead of Hancox Butt dated 24 March 1988 signed by Mr. Robin Butt, in these terms:-

"To Whom it may Concern,

I hereby relinquish copyright of the 'REFLECTIONS' design as enclosed and as constructed at Lot 53, Drayton Terrace, Mermaid Waters to Jupiter Homes Pty. Ltd."

and a receipt addressed to "Jupiter Homes" dated 24 March 1988 acknowledging payment of $2,000, for "RELINQUISHING OF 'REFLECTIONS' DESIGN COPYRIGHT as constructed at lot 53 Drayton Tce. Mermaid Waters."

The letter of 24 March 1988 enclosed the drawing 87.404 from which was built the building at Lot 53 Drayton Terrace. In two places in the attached documents there is a reference to "Jupiter Homes". These plans were drawn by Robin Butt in January 1987, and Taypar built the house at Lot 53, Drayton Terrace in accordance with those plans from March to September 1987. For drawing the plans for "Reflections", Mr. Butt charged the applicant a fee, calculated on the basis of an hourly fee for the time spent on their preparation. The house was constructed as a "display home", and was open for inspection by the public for approximately sixteen months. A sales brochure, which contained a schematic floor plan as well as other pictorial representations of the building, was freely available to members of the public. When a person approached Jupiter Homes to have such a building constructed for them, the arrangement, prior to 24 March 1988, was for Hancox Butt to prepare the plans for that building and charge Jupiter Homes $200.00 for each set of plans. The applicant has constructed approximately twenty-five such homes. The approximate cost of each was $147,000.00 and Mr. James Taylor, a director of the applicant, said that the net profit before tax from each such home was between $10,000.00 and $15,000.00.
The Drayton Terrace block, which had a canal frontage, had been acquired by the applicant in early 1987.
The plans for the house styled "Reflections" has, as a principal feature, a vaulted ceiling along an axis running diagonally from right to left across the block. From a porch, entry by double front doors leads to a lobby containing a planter box, in front of a sunken lounge, which in turn leads to a terrace overlooking the pool to the canal. To the right of the diagonal axis is the family room and kitchen, also overlooking the canal, with the dining room adjacent to the kitchen. The walls of the master bedroom, lounge and family room facing the canal are primarily of full length glass punctuated by featured columns. To the left of the diagonal axis is the master bedroom overlooking the canal with en-suite and walk-in wardrobe. Two further bedrooms, a bathroom and a laundry are on the left of the diagonal axis but closer to the road. A double garage is on the left of the building, closest to the road.
The home "Reflections" was very extensively advertised by Jupiter Homes in newspapers, brochures, signposting and radio. In the Gold Coast Bulletin from 1 September 1987 to 31 July 1988, the home featured in 4520 cm. of column advertising, costing $19,298.30. The advertisements in the Bulletin showed the schematic floor plan of the home "Reflections", as well as other pictorial impressions.
The respondent, Benko Santic, is a registered builder. In late November or early December 1987 he engaged Mr. Graham Dann, an architectural draftsman, to draw plans for a residence at Lot 45, Pebble Beach Drive, Runaway Bay. This block of land is a wedge-shaped block with a frontage to Pebble Beach Drive of nearly 15 metres, and a western frontage to a canal of approximately 22.5 metres. The southern boundary is about 36.5 metres and the northern boundary slightly more than 37 metres. Mr. Santic says the instructions he gave to Mr. Dann included that the house was to have either four bedrooms, or three bedrooms and a study, and be of about 30 to 32 squares in size. He wanted the lounge room, family room, kitchen, and preferably the main bedroom all facing west to the waterway. He told him that he wanted domes, fish ponds, spa baths and various other exclusive items, and he asked Mr. Dann to repeat the same type of ceiling he had designed in a duplex the preceding year. That duplex has Dutch gables, with ceilings sloping from a central axis to the lateral walls.
In January 1988 there was a second meeting. At that stage there was in existence a "brown paper" drawing. Further modifications were suggested to Mr. Dann by Mr. Santic. Amongst others, he wanted the master bedroom enlarged. At a third meeting there were further changes suggested including changes to the kitchen involving a change in the built-in cupboard position. At the third meeting, various alterations were made to a paper drawing produced by Mr. Dann. By the time of their fourth meeting, Mr. Dann had prepared a transparency of the plan for the proposed residence. On a paper copy of this, further alterations were made, in Mr. Santic's hand, dealing with the internal layout of kitchen cupboards.
On 22 January 1988, a Notice of Building Construction was lodged at the Gold Coast Office of the Builders' Registration Board of Queensland and a remittance of $200.00 was paid for the insurance premium prescribed by the regulations under the Builders' Registration and Home Owners' Protection Act 1979-83. Mr. Santic says the plans were taken to the Council on 22 January 1988, just after the fourth meeting with Mr. Dann. He says the footings were commenced early in February, the plans having been approved approximately a week after their submission. At that stage, Mr. Peter Dann, a carpenter, was engaged to do the framework. On 29 February the building work approval issued from the Gold Coast City Council in respect of the house at 405 Pebble Beach Drive. After the frame and truss were erected by the carpenter, an invoice dated 14 March 1988 was issued by E.R. and C.J. Wiseman, bricklayers, relating to 8,000 bricks.
Mr. Santic says that he has never seen or viewed a "Reflections" design plan, nor been to the display house which Jupiter Homes had at 53 Drayton Terrace, and the only advertisements in the local newspapers he has seen were subsequent to the letter of demand received from the applicant's solicitors. He admitted that he did not specifically ask for a 45 degree vaulted ceiling in the lounge room.
Mr. John Taylor, a registered builder and director of the applicant company, says that he received information from a supervisor concerning the home at Lot 405 Pebble Beach Drive. As a consequence he inspected the home initially by himself, and on a second occasion in the company of a Mr. John Hennessey, a solicitor. The latter occasion, he says, would have been about February 1988. On that occasion he had a camera with him and took a number of photographs of the house. He was told by Mr. Santic, who was present, to leave the premises.
Photographs that Mr. Taylor says were taken on the occasion of the second visit were each produced in evidence. Those photographs show a house at the lock-up stage with interior plastering and electrical fittings completed, sliding doors installed, and interior plaster walls and ceiling painted.
The only conclusion which those photographs and the evidence of Mr. Taylor permit is that in February 1988 the house was substantially complete, the structure being finished with only exterior and interior finishing touches required.
The home built by Mr. Santic reflects the same overall concept as the home of the applicants at Drayton Terrace, the principal design feature being a vaulted ceiling along a diagonal axis from right to left along the block, with a planter preceding a sunken lounge, which leads in turn on to a terrace overlooking the pool to the canal. The layout of the rooms is quite similar, but there are many instances of differences in particular aspects of the two designs. There is a difference in the window treatment at the end of the vaulted ceiling. There are many returns in the applicant's design in the slab and exterior walls which do not appear in the respsondent's house, which has squared off sections, particularly on the dining and kitchen side of the house. There is a difference in the roof lines in that the Dutch gable in the applicant's design is steeper. In the garage section of the applicant's home there are two sets of glass brick windows which contrast with three normal windows in the respondent's plan. There are significant differences between the layout of the kitchens and in the dining rooms, including their orientations, and differences in the configurations of the en-suite spas and dimensions of the various bedrooms.
Copyright in an original work is the bundle of rights referred to in s. 31 of the Act. In my opinion, and it was not really an issue in these proceedings, the drawing 87.404, the house plan "Reflections" and the building at Drayton Terrace were each original artistic works within the meaning of s. 10 of the Copyright Act. By that section, "artistic work" includes both a drawing or a building, whether the work is of artistic quality or not. By s. 32 of the Act, and subject to the Act, copyright subsists in an original literary, dramatic, musical or artistic work.
In Ladbroke (Football) Ltd v. William Hill (Football) Ltd (1964) 1 WLR 273, Lord Pearce at 291 said:-

"The word 'original' does not demand original or inventive thought, but only that the work should not be copied and should originate from the author.

In deciding therefore whether a work in the nature of a compilation is original, it is wrong to start from considering individual parts of it, apart from the whole...For many compilations have nothing original in their parts yet the sum total of the compilation may be original."

Section 35(2) of the Act provides:-

"Subject to this section, the author of a literary, dramatic, musical or artistic work is the owner of any copyright subsisting in the work by virtue of this Part."

There is no doubt that pursuant to that sub-section and prior to 24 March 1988, the author of the drawing 87.404 and the plan "Reflections" was Mr. Robin Butt, who owned the copyright in those drawings. Since the building at Drayton Terrace was in every respect (save that there was only one step from the entrance to the sunken lounge instead of the two in the original drawings) a reproduction of the artistic works constituted by the drawing and the plan, Mr Butt owned the copyright in the building: see s. 21(3).
Section 71, which limits reproductions in different dimensions from constituting infringements of copyright where non-experts would not regard the reproductions as reproductions, has no application in this case.
In Copinger and Skone James on Copyright 10th ed., the learned authors say at par. 408:-

"...There is no infringement unless it is established that the defendant has produced a work which both closely resembles the plaintiff's and has been produced by a direct or indirect use of those features of the plaintiff's in which the copyright subsists."

In Ancher, Mortlock, Murray & Woolley Pty Ltd v. Hooker Homes Pty Ltd (1971) 2 NSWLR 278, Street J., as he then was, noted the fine line that may exist between the conduct of an architect who, having inspected an original plan or house, then proceeds to embody the architectural concept in an original plan prepared by him, and that of an architect who merely proceeds to copy what he has seen. Street J. said at 289, when dealing with the question of resemblance:-

"The similarities and the dissimilarities, weighed together and weighed separately, might well have led me to the conclusion, particularly in the split level house, that no infringement had occurred. The defendant might well have been credited with having engaged in a bona fide application of the concept and ideas of Mr. Woolley, and not in an unfair copying of his expression of concept and ideas. But I have already, for reasons stated, inferred that the defendant did engage in unfair copying of the plaintiffs' plans and houses. This adds significance to the similarities that do exist and diminishes significance from the dissimilarities."

In S.W. Hart & Co. Pty Ltd v. Edwards Hot Water Systems (1984-85) 159 CLR 466 at 484, Wilson J. said:-

"The question remains whether the trial judge's finding of reproduction is to be sustained. As I have shown, the trial judge dealt separately with the two factors which are involved in reproduction, namely similarity and copying. Although his findings on each of those factors, separately considered, may be sustained, I believe that to consider them in that fashion in the circumstances of this case is to introduce an artificiality into the process which overlooks the interdependence that naturally characterizes the two factors. There may be cases where this is not so. If a case is to succeed where there is no evidence of access to the copyright drawings, the similarity of the impugned product to the drawings will be required to be so strong as to itself sustain, without more, an inference of copying. On the other hand, in a case where there is strong evidence in support of an inference of copying such evidence as there is of similarity may take on added significance. It must, of course, still amount to a sufficient similarity of a substantial part of the copyright work. But such dissimilarities as are apparent may be seen as no more than a deliberate attempt to obscure what has actually taken place, namely, the appropriation of another person's labour."

It seems to me on a detailed analysis of the two plans, and taking into account all the points of difference, that the respondent's house and the plan therefor is a copy to a substantial extent of the house built by the applicant, the drawing 87.404 and the "Reflection" plan. The striking principal features of the house, the juxtaposition of the rooms, and the orientation of the house are such that I am satisfied that there has been a copy by Mr. Graham Dann of a substantial part of the "Reflections" design, and the differences that are to be seen in the various drawings are modifications to suit the particular peculiarities of the block on which the home was to be built, and to reduce cost, and the other modifications, while extensive in number and quite marked in some respects, do not prevent the conclusion that the essence of the "Reflections" design has been copied.
Conscious of the fine line between embodying an architectural concept in an original plan and copying what one has seen or read, and approaching the matter as one of qualitative assessment, I am satisfied that there has been an unfair appropriation of the "Reflections" plan. It is my opinion, implicit in what I have just stated, that there is sufficient objective similarity between a substantial part of the house constructed by the respondent and the "Reflections" plan and the drawing 87.404. That objective similarity is not the consequence of a bona fide application of the concept and ideas in the drawing and plan, but is an unfair copying of the expression of that concept and idea. To overlay the transparency of the house plan as drawn by Mr. Graham Dann over the drawing 87.404 drawn by Mr. Robin Butt, speaks eloquently towards that conclusion.
As I have indicated, there are many differences between the two drawings including the positioning of doors, wardrobes, cupboards and windows and the style of windows. Notwithstanding that, a high degree of similarity compels the conclusion that there is a causal connection between the material in which the applicant claims copyright and the plan of Mr. Dann and the house at 405 Pebble Drive.
Mr. Dann, as an architectural draftsman, obtains ideas from architectural magazines, books, newspapers, and other homes that he sees. He admits that, if the design were advertised in the local Bulletin newspaper he would have seen it, and I am satisfied that such is the similarity of the striking principal features in the "Reflections" plan that there was a copying by Mr. Dann of the principal features in the "Reflections" plan. I do not exclude the possibility that the copying was unconscious, although the similarities tend to the contrary.

Notwithstanding this finding, in my view the application fails.
Section 115(1) of the Act provides:-

"Subject to this Act, the owner of a copyright may bring an action for an infringement of the copyright."

Apart from the rights which the Act gives to an exclusive licensee, actions for infringement are required by the Act to be brought by the owner of the copyright. It is possible, as s. 30 of the Act recognises, for different persons to be the owners of a copyright in respect of the application of the copyright to the doing of different acts or classes of acts, or the doing of one or more acts or classes of acts in different countries or at different times. In my view the owner of a copyright or the respective owners of parts of the copyright are the only persons entitled to bring an action for infringement of the copyright or the respective parts of the copyright, and it is not competent for an assignee of a copyright to bring an action in respect of an infringement that occurred prior to his becoming the owner of the copyright, merely by virtue of being the assignee of the copyright.
In this case, even if there be a valid assignment to the applicant of the subject copyright constituted by the letter and receipt of 24 March 1988 from Hancox Butt, any infringement of that copyright predated that assignment. The plan entitled "Proposed Residence Lot 405 Pebble Beach Drive, Runaway Islands, Runaway Bay for Mr. B. Santic" came into existence on or before 22 January 1988 and all building construction in respect of the house at Pebble Beach Road which required the reproduction of that plan in a material form, was completed prior to 24 March 1988. Any infringement of the copyright in the drawing 87.404, the "Reflections plan, or the house at Drayton Terrace, occurred at a time when Taypar was not the owner of the copyright, and in my view, Taypar is not competent to sue in respect of any such infringement.
The documents of 24 March 1988 are relied on as an assignment of copyright. In my view there is nothing retrospective in any assignment effected by those documents. In particular there was no assignment or purported assignment of any right to litigate in respect of earlier breaches of the copyright.
A bare right of action is not assignable. Lindgren et al in Contract Law in Australia (1986) at para. 927 say:-

"A bare right of action for breach of contract or tort, whether legal, such as the right to sue for damages, or equitable, such as the right to seek specific performance, is not assignable. The reason is the public policy against maintenance and champerty, the policy that 'no encouragement should be given to litigation by the introduction of parties to enforce those rights which others are not disposed to enforce'...In Trendtex Trading Corp. v. Credit Suisse (1982) AC 679 the house of Lords reaffirmed the unassignability of a bare right to litigate as savouring of maintenance, but acknowledged exceptions where the assignment is incidental to the assignment of a property right or interest or where the assignee has 'a genuine and substantial interest in the success of the...litigation' (at 694 per Lord Wilberforce with whom Lords Edmund-Davies and Keith of Kinkel agreed) or 'a genuine commercial interest in taking the assignment and in enforcing it for his own benefit.' (at 703 per Lord Roskill)."

Starke in "Assignment of Choses in Action" classifies copyright as a chose in action. An assignment of a chose in action is a transaction or disposition which has the effect in general of immediately transferring the right in question from the party in whom it is invested to another party: Norman v. Federal Commissioner of Taxation (1962-63) 109 CLR 9 at 26.
That conclusion is sufficient to dispose of the application, but there are further findings that I ought to make.
As to whether there is a valid assignment to the applicant by the owner of the copyright in the house plans of the Jupiter Homes house, s. 196 of the Act provides:-

"(1) Copyright is personal property and, subject to this section, is transmissible by assignment, by will and by devolution by operation of law. ...

(3) An assignment of copyright (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor."

The letter of 24 March does not use the word "assign" or "assignment"; it purports to "relinquish copyright" to "Jupiter Homes Pty Ltd" The receipt is not addressed to a company but to "Jupiter Homes". It was submitted by the respondent that these documents do not constitute an assignment to the applicant, Taypar. It was submitted that the misnomer was fatal and reliance was placed on two Statute of Frauds cases, Ford v. Young (1882) 8 VLR 93 and King v. Grimwood (1891) 17 VLR 253. I do not find the analogy between the provisions of the Copyright Act on the State of Frauds compelling.
The requirement of s. 196 is that the assignment be in writing and signed by or on behalf of the assignor. It is not sufficient that an assignment merely be evidenced in writing.
Acknowledging the obvious difficulties concerning the documents of 24 March 1988, in my opinion they do constitute an assignment of the copyright in the "Reflections" design by Robin Butt to the applicant. While "relinquish", according to the Macquarie Dictionary, means "to renounce or surrender or to give up, put aside or desist from, or to relinquish a plan", the letter of 24 March 1988 speaks of a relinquishing to Jupiter Homes Pty Ltd, and I think the letter is fairly to be read as constituting a surrender of the rights existing in the copyright and design to the applicant. I say "to the applicant", because the applicant trades under the business name, Jupiter Homes, which is a registered business name. It is a fair inference that there is no company "Jupiter Homes Pty Ltd".
Reliance was also placed on s. 77(1) of the Act which provides:-

"(1) Where-

(a) copyright subsists in an artistic work;

(b) a corresponding design is applied industrially by, or with the licence of, the owner of the copyright in the work;

(c) articles to which the corrsponding design has been so applied (in this section referred to as 'articles made to the corresponding design') are sold, let for hire or offered or exposed for sale or hire in Australia; and

(d) at the time when those articles are so sold, let for hire or offered or exposed for sale or hire, they are not articles in respect of which the corresponding design has been registered under the Designs Act 1906-1968,

the succeeding sub-sections of this section have effect."

Section 74(1) provides that:-

"In this Division, 'corresponding design', in relation to an artistic work, means a design that, when applied to an article, results in a reproduction of that work."

In my opinion, reliance on those provisions in Division 8 dealing with "Designs" in the present context is misconceived. "Corresponding design" requires the application of a design to an article and s. 77(1)(b) requires an industrial application.
Section 77(5) provides:-

"The regulations may make provision for determing the circumstances in which a design is, for the purposes of this section, to be deemed to be applied industrially."

Regulation 17 of the Copyright Regulations provides:-

"(1) For the purposes of section 77 of the Act, a

design shall be deemed to be applied industrially if it is applied-

(a) to more than fifty articles; or

(b) to one or more articles (other than hand-made articles) manufactured in lengths or pieces.

(2) For the purposes of paragraph (a) of the last preceding sub-regulation, any two or more articles -

(a) that are of the same general character;

(b) that are intended for use together; and

(c) to which the same design, or substantially the same design, is applied, shall be deemed to constitute a single article.

(3) For the purposes of this regulation, a design shall be deemed to be applied to an article if-

(a) the design is applied to the article by a process (whether a process of printing, embossing or otherwise); or

(b) the design is reproduced on or in the article in the course of the production of the article. ..."

As to the effect of Regulation 17, King J. In Safe Sport Australia Pty Ltd v Puma Australia Pty Ltd (1985) 4 IPR 120 said at 126:-

"With relation to the above contention based on s. 17A(1), Mr Shavin has submitted that reg 17 does not purport to state an exhaustive definition of the term 'applied industrially', but sets up a 'statutory fiction' the purpose of which is to extend the meaning of this term to a subject matter which it does not or may not properly designate: Muller v Dalgety & Co Ltd

(1909) 9 CLR 693 at 696, per Griffith CJ.; Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 44 ALJR 257 at 260 per Windeyer J.. It is an aspect of this argument that the above term has a normal relevant meaning, which has not been impaired by the deeming provision, and that a design may be applied industrially to less than fifty articles. I think that there is much to be said in favour of Mr Shavin submission on this point. The question whether there has been industrial application of a design where it has been applied to more than fifty articles could be a difficult question of fact, but reg. 17 disposes of all doubts on the point. It seems undesirable that a deeming provision should have any wider application than it needs to have, and I think that there nothing incongruous in leaving it to be decided as a question of fact whether there is industrial application of a design in a case where less than fifty applications of the design have taken place."

In Re an application by R.H. Collier & Co. Ltd. (1936-37) 54 RPC 253, the Assistant Comptroller expressed the view:-

"The various operations incidental to the erection or building of a structure of this kind (being a petrol filling station) according to a pre-determined design or plan appear to me to be completely analagous to what is involved in the erection of an ordinary building such as a dwelling house in accordance with plans prepared by an architect. In my view such a series of operations is simply building in the ordinary sense of the term, and is not the application of a design to an article by an industrial process in the sense contemplated by the Acts."

In the Patents Appeal Tribunal, in An application for registration of a design by Concrete Ltd. (1939) 57 RPC 121, Morton J. said at 127:-

"The air-raid shelter shown in the representations filed with the Application in the present case differs from the building which Mr Martin had to consider in certain respects - it has, apparently, no foundations and no doors or windows - but the series of operations which results in the structure arising on the purchaser's premises is substantially the same in both cases.

I agree with the view of Mr Martin that such a series of operations is not 'the application of a design to an article by an industrial process' in the sense contemplated by the Acts."

As to damages, the measure is the diminution in value or the depreciation in value of the copyright.
Here, Mr Butt charged $800.00 for the production of the original plans and $200.00 for something in the nature of a licence fee for plans for houses subsequently to be built according to those plans. There is nothing to suggest that Mr Santic, a registered builder, might have purchased a house from the applicant. There is a large measure of speculation, whether the purchaser of Mr Santic's house would otherwise have sought to build a house to the "Reflections" design. Mr Santic and the applicant are in a sense competitors in the market consisting of retail purchasers of domestic dwellings. The applicant has spent a considerable amount in promoting the sale of houses built to the "Reflections" design, and some indication of the value of the copyright is afforded by the fact that some 25 houses have been built by the applicant at a sale price in excess of $140,000 each, with a net profit before tax of $10,000 to $15,000. However, I think the most significant evidence touching on this question is the fact that the applicant acquired the copyright from the original owner of it, for $2,000.00.
Had I found for the applicant on the question of infringement and on damages, I would assess damages at $500.00.
However, it seems to me that on the evidence in this case, s. 115(3) would in any event preclude the award of damages against Mr Santic.
For the above reasons, the application is dismissed with costs.

[1989] FCA 832

21 DECEMBER 1989