Report file for Australasian Performing Right Association Ltd v. Jain (1990) 26 FCR 53

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% Copyright James Popple 1993

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\begin{document}

\subsection*{Authorization area}

\subsubsection*{Instant case}

The notion of authorization extends beyond the authority given
  to an agent. The word ``authorize'' should be ``understood in
  its ordinary dictionary sense of `sanction, approve, and
  countenance.'\,''\footnote{\frenchspacing{\it Falcon v. Famous
  Players Film Co.\/} \nonfrenchspacing[1926] 2 KB 474 at~491
  per Bankes~LJ.}\par ``[A] person who has under his control the
  means by which an infringement of copyright may be committed
  \dots\ and who makes it available to other persons, knowing,
  or having reason to suspect, that it is likely to be used for
  the purpose of committing an infringement, and omitting to
  take reasonable steps to limit its use to legitimate purposes,
  would authorize any infringement that resulted from its
  use.''\footnote{\frenchspacing{\it University of New South
  Wales v. Moorhouse\/} \nonfrenchspacing(1975) 133 CLR 1 at~13
  per Gibbs~J.}

\medskip\noindent In the instant case,
    the infringer was not an employee of the accused;
    the infringer was an independent contractor to the accused;
    the accused did not sell or hire the infringer the means of
      infringing;
    the accused had the power to prevent the infringement;
    the accused did not take reasonable steps to avoid the
      infringement;
    the accused knew, or had reason to anticipate or suspect,
      that the infringing act was to be, or was likely to be,
      done; and
    the specific infringement was not causally related to an
      incitement to infringe on the part of the accused.

\medskip\noindent In my opinion---following \frenchspacing
{\it Mellor v. Australian Broadcasting Commission\/}\nonfrenchspacing---%
the accused authorized the infringement.

\medskip\noindent In \frenchspacing
{\it Mellor v. Australian Broadcasting Commission}\nonfrenchspacing,%
\footnote{[1940] AC 491.}
    a 1940 decision of
      the Judicial Committee of the Privy Council,
    Mellor and others held the sole right to perform in public
      in Australia musical works arranged for performance by
      brass and military bands. They published and distributed
      advertising pamphlets which included a statement that all
      of their sheet music was ``\,`Free for Public Performance'
      anywhere \dots\ We have paid for the performing rights of
      every piece we issue.''\footnote{ibid.\ at~498--9.} The
      ABC engaged bands to play some of this music, and
      broadcast the bands' performances on radio.\par The Privy
      Council held that the ABC had authorized the bands to
      perform the musical works within the meaning of s.~1(2) of
      the Copyright Act 1911 (UK) which was in force in
      Australia by virtue of the {\it Copyright Act 1912\/}
      (Cth). However, the ABC had not infringed the plaintiffs'
      sole right to authorize public performance because the
      statements made in the pamphlets amounted to consent.

There are several significant similarities
between the instant case and \frenchspacing
{\it Mellor v. ABC\/}\null\nonfrenchspacing:
    the infringer was not an employee of the accused;
    the infringer was an independent contractor to the accused;
    the accused did not sell or hire the infringer the means of
      infringing;
    the accused had the power to prevent the infringement;
    the accused did not take reasonable steps to avoid the
      infringement; and
    the accused knew, or had reason to anticipate or suspect,
      that the infringing act was to be, or was likely to be,
      done.

However, the instant case is not on all fours with \frenchspacing
{\it Mellor v. ABC}\null\nonfrenchspacing.
In that case
    the specific infringement was causally related to an
      incitement to infringe on the part of the accused.

Nevertheless, I believe that \frenchspacing
{\it Mellor v. ABC\/} \nonfrenchspacing
should be followed.

\medskip\noindent If \frenchspacing
{\it RCA Corporation v. John Fairfax and Sons Ltd\/} \nonfrenchspacing
is followed then the accused did not authorize the infringement.

\medskip\noindent In \frenchspacing
{\it RCA Corporation v. John Fairfax and Sons Ltd}\nonfrenchspacing,%
\footnote{[1981] 1 NSWLR 251.}
    a 1981 decision of
      the Supreme Court of New South Wales,
    the Fairfax newspaper the {\it Sun-Herald\/} carried an
      article which pointed out that, using cassette tapes and
      good quality taping equipment, the same album can be taped
      by many people. It also discussed how the advent of FM
      radio had made it easy for people to tape new album and
      single releases without buying the discs: ``Why spend
      nearly \$10 on the new David Bowie album when you can tape
      it from 2JJJ?''\footnote{ibid.\ at~252.}\par Kearney~J
      held that ``authorization involves some element of
      causation---and hence the necessity for some relationship
      creating a link or connection however tenuous between the
      authorizer and the infringer.''\footnote{ibid.\ at~259.}
      There was no such link, so Fairfax had not authorized any
      infringement within the meaning of s.~13(2) of the {\it
      Copyright Act 1968\/} (Cth).

There are several similarities
between the instant case and \frenchspacing
{\it RCA v. Fairfax\/}\null\nonfrenchspacing:
    the infringer was not an employee of the accused;
    the accused did not sell or hire the infringer the means of
      infringing;
    the accused did not take reasonable steps to avoid the
      infringement;
    the accused knew, or had reason to anticipate or suspect,
      that the infringing act was to be, or was likely to be,
      done; and
    the specific infringement was not causally related to an
      incitement to infringe on the part of the accused.

However, there are two very significant differences
between the instant case and \frenchspacing
{\it RCA v. Fairfax}\null\nonfrenchspacing.
In that case
    the infringer was not an independent contractor to the
      accused; and
    the accused did not have the power to prevent the
      infringement.

Despite the fact that \frenchspacing
{\it RCA v. Fairfax\/} \nonfrenchspacing
is a decision of
the Supreme Court of New South Wales
(and better authority than a case decided by
the Judicial Committee of the Privy Council%
---like \frenchspacing
{\it Mellor v. ABC\/}\nonfrenchspacing),
there is nothing in \frenchspacing
{\it RCA v. Fairfax\/} \nonfrenchspacing
to warrant any change in my conclusion.

\medskip\noindent If \frenchspacing
{\it Australasian Performing Right Association Ltd v. Miles\/} \nonfrenchspacing
is followed then the accused is liable (directly or vicariously) for the infringement.

\medskip\noindent In \frenchspacing
{\it Australasian Performing Right Association Ltd v. Miles}\nonfrenchspacing,%
\footnote{[1962] NSWR 405.}
    a 1961 decision of
      the Supreme Court of New South Wales,
    the Dee Why RSL Club engaged a band to play at a dance held
      at the club. During the dance the band played {\it I've
      Got a Lovely Bunch of Coconuts}, the copyright in which
      was owned by the Australasian Performing Right
      Association.\par Jacobs~J held that the members of the
      band were servants of the club, because ``the club through
      its officers was exercising a control over the work
      performed in such a way as to show that there was an
      authority to command the orchestra in its
      performance.''\footnote{ibid.\ at~407.} So the members of
      the club, through the band, performed the musical work and
      infringed the copyright under s.~2(1) of the Copyright Act
      1911 (UK) which was in force in Australia by virtue of the
      {\it Copyright Act 1912\/} (Cth).

There are several similarities
between the instant case and \frenchspacing
{\it APRA v. Miles\/}\null\nonfrenchspacing:
    the accused did not sell or hire the infringer the means of
      infringing;
    the accused had the power to prevent the infringement;
    the accused did not take reasonable steps to avoid the
      infringement; and
    the accused knew, or had reason to anticipate or suspect,
      that the infringing act was to be, or was likely to be,
      done.

However, there are several significant differences
between the instant case and \frenchspacing
{\it APRA v. Miles}\null\nonfrenchspacing.
In that case
    the infringer was an employee of the accused;
    the infringer was not an independent contractor to the
      accused; and
    the specific infringement was causally related to an
      incitement to infringe on the part of the accused.

Despite the fact that \frenchspacing
{\it APRA v. Miles\/} \nonfrenchspacing
is a decision of
the Supreme Court of New South Wales
(and better authority than a case decided by
the Judicial Committee of the Privy Council%
---like \frenchspacing
{\it Mellor v. ABC\/}\nonfrenchspacing),
there is nothing in \frenchspacing
{\it APRA v. Miles\/} \nonfrenchspacing
to warrant any change in my conclusion.

\subsubsection*{Hypothetical 1}

Consider the instant case changed so that the following is true:
    the specific infringement was causally related to an
      incitement to infringe on the part of the accused.

\medskip\noindent If that were so then I would be more strongly of the
opinion that---following \frenchspacing
{\it Mellor v. Australian Broadcasting Commission\/}\nonfrenchspacing---%
the accused authorized the infringement.

\medskip\noindent Details of \frenchspacing
{\it Mellor v. ABC\/} \nonfrenchspacing
are summarized above.
The hypothetical case is on all fours with \frenchspacing
{\it Mellor v. ABC}\null\nonfrenchspacing.

\medskip\noindent If \frenchspacing
{\it RCA Corporation v. John Fairfax and Sons Ltd\/} \nonfrenchspacing
is followed then the accused did not authorize the infringement.

\medskip\noindent Details of \frenchspacing
{\it RCA v. Fairfax\/} \nonfrenchspacing
are summarized above.
There are several similarities
between the hypothetical case and \frenchspacing
{\it RCA v. Fairfax\/}\null\nonfrenchspacing:
    the infringer was not an employee of the accused;
    the accused did not sell or hire the infringer the means of
      infringing;
    the accused did not take reasonable steps to avoid the
      infringement; and
    the accused knew, or had reason to anticipate or suspect,
      that the infringing act was to be, or was likely to be,
      done.

However, there are several significant differences
between the hypothetical case and \frenchspacing
{\it RCA v. Fairfax}\null\nonfrenchspacing.
In that case
    the infringer was not an independent contractor to the
      accused;
    the accused did not have the power to prevent the
      infringement; and
    the specific infringement was not causally related to an
      incitement to infringe on the part of the accused.

Despite the fact that \frenchspacing
{\it RCA v. Fairfax\/} \nonfrenchspacing
is a decision of
the Supreme Court of New South Wales
(and better authority than a case decided by
the Judicial Committee of the Privy Council%
---like \frenchspacing
{\it Mellor v. ABC\/}\nonfrenchspacing),
there is nothing in \frenchspacing
{\it RCA v. Fairfax\/} \nonfrenchspacing
to warrant any change in my conclusion.

\medskip\noindent If \frenchspacing
{\it Australasian Performing Right Association Ltd v. Miles\/} \nonfrenchspacing
is followed then the accused is liable (directly or vicariously) for the infringement.

\medskip\noindent Details of \frenchspacing
{\it APRA v. Miles\/} \nonfrenchspacing
are summarized above.
There are several similarities
between the hypothetical case and \frenchspacing
{\it APRA v. Miles\/}\null\nonfrenchspacing:
    the accused did not sell or hire the infringer the means of
      infringing;
    the accused had the power to prevent the infringement;
    the accused did not take reasonable steps to avoid the
      infringement;
    the accused knew, or had reason to anticipate or suspect,
      that the infringing act was to be, or was likely to be,
      done; and
    the specific infringement was causally related to an
      incitement to infringe on the part of the accused.

However, there are two very significant differences
between the hypothetical case and \frenchspacing
{\it APRA v. Miles}\null\nonfrenchspacing.
In that case
    the infringer was an employee of the accused; and
    the infringer was not an independent contractor to the
      accused.

Despite the fact that \frenchspacing
{\it APRA v. Miles\/} \nonfrenchspacing
is a decision of
the Supreme Court of New South Wales
(and better authority than a case decided by
the Judicial Committee of the Privy Council%
---like \frenchspacing
{\it Mellor v. ABC\/}\nonfrenchspacing),
there is nothing in \frenchspacing
{\it APRA v. Miles\/} \nonfrenchspacing
to warrant any change in my conclusion.

\subsubsection*{Hypothetical 2}

Consider the instant case changed so that the following is true:
    the accused did not know, and had no reason to anticipate or
      suspect, that the infringing act was to be, or was likely
      to be, done.

\medskip\noindent If that were so then my opinion would be
that---following \frenchspacing
{\it Performing Right Society Ltd v. Ciryl Theatrical Syndicate Ltd\/}\nonfrenchspacing---%
the accused did not authorize the infringement.

\medskip\noindent In \frenchspacing
{\it Performing Right Society Ltd v. Ciryl Theatrical Syndicate Ltd}\nonfrenchspacing,%
\footnote{[1924] 1 KB 1.}
    a 1923 decision of
      the English Court of Appeal,
    the syndicate was the lessee of a theatre. The
      managing-director of the syndicate produced a play at that
      theatre, and engaged a band to perform at the theatre
      under the direction of a bandmaster. In the absence of the
      managing-director, and without his knowledge, the band
      performed works the copyright in which was owned by the
      Performing Right Society.\par Bankes, Scrutton and
      Atkin~LJJ held that the managing-director had not
      authorized the infringing performances, within the meaning
      of s.~1(2) of the Copyright Act 1911 (UK), because the
      infringement occurred without his knowledge and he had no
      reason to anticipate or suspect that the band was likely
      to give performances which would breach copyright.

The hypothetical case is on all fours with \frenchspacing
{\it PRS v. Ciryl}\null\nonfrenchspacing.

\medskip\noindent If \frenchspacing
{\it Mellor v. Australian Broadcasting Commission\/} \nonfrenchspacing
is followed then the accused authorized the infringement.

\medskip\noindent Details of \frenchspacing
{\it Mellor v. ABC\/} \nonfrenchspacing
are summarized above.
There are several similarities
between the hypothetical case and \frenchspacing
{\it Mellor v. ABC\/}\null\nonfrenchspacing:
    the infringer was not an employee of the accused;
    the infringer was an independent contractor to the accused;
    the accused did not sell or hire the infringer the means of
      infringing;
    the accused had the power to prevent the infringement; and
    the accused did not take reasonable steps to avoid the
      infringement.

However, there are two very significant differences
between the hypothetical case and \frenchspacing
{\it Mellor v. ABC}\null\nonfrenchspacing.
In that case
    the accused knew, or had reason to anticipate or suspect,
      that the infringing act was to be, or was likely to be,
      done; and
    the specific infringement was causally related to an
      incitement to infringe on the part of the accused.

Despite the fact that \frenchspacing
{\it Mellor v. ABC\/} \nonfrenchspacing
is a decision of
the Judicial Committee of the Privy Council
(and better authority than a case decided by
the English Court of Appeal%
---like \frenchspacing
{\it PRS v. Ciryl\/}\nonfrenchspacing),
there is nothing in \frenchspacing
{\it Mellor v. ABC\/} \nonfrenchspacing
to warrant any change in my conclusion.

\medskip\noindent If \frenchspacing
{\it Australasian Performing Right Association Ltd v. Miles\/} \nonfrenchspacing
is followed then the accused is liable (directly or vicariously) for the infringement.

\medskip\noindent Details of \frenchspacing
{\it APRA v. Miles\/} \nonfrenchspacing
are summarized above.
There are several similarities
between the hypothetical case and \frenchspacing
{\it APRA v. Miles\/}\null\nonfrenchspacing:
    the accused did not sell or hire the infringer the means of
      infringing;
    the accused had the power to prevent the infringement; and
    the accused did not take reasonable steps to avoid the
      infringement.

However, there are several significant differences
between the hypothetical case and \frenchspacing
{\it APRA v. Miles}\null\nonfrenchspacing.
In that case
    the infringer was an employee of the accused;
    the infringer was not an independent contractor to the
      accused;
    the accused knew, or had reason to anticipate or suspect,
      that the infringing act was to be, or was likely to be,
      done; and
    the specific infringement was causally related to an
      incitement to infringe on the part of the accused.

Despite the fact that \frenchspacing
{\it APRA v. Miles\/} \nonfrenchspacing
is a decision of
the Supreme Court of New South Wales
(and better authority than a case decided by
the English Court of Appeal%
---like \frenchspacing
{\it PRS v. Ciryl\/}\nonfrenchspacing),
there is nothing in \frenchspacing
{\it APRA v. Miles\/} \nonfrenchspacing
to warrant any change in my conclusion.

\subsubsection*{Hypothetical 3}

Consider the instant case changed so that the following is true:
    the infringer was an employee of the accused; and
    the infringer was not an independent contractor to the
      accused.

\medskip\noindent If that were so then my opinion would be
that---following \frenchspacing
{\it Australasian Performing Right Association Ltd v. Miles\/}\nonfrenchspacing---%
the accused is liable (directly or vicariously) for the infringement.

\medskip\noindent Details of \frenchspacing
{\it APRA v. Miles\/} \nonfrenchspacing
are summarized above.
There are several significant similarities
between the hypothetical case and \frenchspacing
{\it APRA v. Miles\/}\null\nonfrenchspacing:
    the infringer was an employee of the accused;
    the infringer was not an independent contractor to the
      accused;
    the accused did not sell or hire the infringer the means of
      infringing;
    the accused had the power to prevent the infringement;
    the accused did not take reasonable steps to avoid the
      infringement; and
    the accused knew, or had reason to anticipate or suspect,
      that the infringing act was to be, or was likely to be,
      done.

However, the hypothetical case is not on all fours with \frenchspacing
{\it APRA v. Miles}\null\nonfrenchspacing.
In that case
    the specific infringement was causally related to an
      incitement to infringe on the part of the accused.

Nevertheless, I believe that \frenchspacing
{\it APRA v. Miles\/} \nonfrenchspacing
should be followed.

\medskip\noindent If \frenchspacing
{\it University of New South Wales v. Moorhouse\/} \nonfrenchspacing
is followed then the accused authorized the infringement.

\medskip\noindent In \frenchspacing
{\it University of New South Wales v. Moorhouse}\nonfrenchspacing,%
\footnote{(1975) 133 CLR 1.}
    a 1975 decision of
      three judges of the High Court of Australia,
    a graduate of the University used a photocopy machine in the
      University library to make two copies of a story from a
      library copy of a book of short stories.\par
      McTiernan~ACJ, Gibbs and Jacobs~JJ held that the
      University had authorized the infringement within the
      meaning of s.~36(1) of the {\it Copyright Act 1968\/}
      (Cth); it had the power to prevent infringements, but had
      not taken reasonable steps to prevent them.\footnote{The
      {\it Copyright Act\/} was amended in 1980 to ameliorate
      the effect of \frenchspacing{\it UNSW v. Moorhouse\/}
      \nonfrenchspacing as far as photocopying in educational
      institutions is concerned.} Gibbs~J's statement about what
      constitutes authorization of an infringement is quoted
      above.

There are several similarities
between the hypothetical case and \frenchspacing
{\it UNSW v. Moorhouse\/}\null\nonfrenchspacing:
    the infringer was not an independent contractor to the
      accused;
    the accused had the power to prevent the infringement;
    the accused did not take reasonable steps to avoid the
      infringement;
    the accused knew, or had reason to anticipate or suspect,
      that the infringing act was to be, or was likely to be,
      done; and
    the specific infringement was not causally related to an
      incitement to infringe on the part of the accused.

However, there are two very significant differences
between the hypothetical case and \frenchspacing
{\it UNSW v. Moorhouse}\null\nonfrenchspacing.
In that case
    the infringer was not an employee of the accused; and
    the accused sold or hired the infringer the means of
      infringing.

Despite the fact that \frenchspacing
{\it UNSW v. Moorhouse\/} \nonfrenchspacing
is a decision of
three judges of the High Court of Australia
(and better authority than a case decided by
the Supreme Court of New South Wales%
---like \frenchspacing
{\it APRA v. Miles\/}\nonfrenchspacing),
there is nothing in \frenchspacing
{\it UNSW v. Moorhouse\/} \nonfrenchspacing
to warrant any change in my conclusion.

\medskip\noindent If \frenchspacing
{\it RCA Corporation v. John Fairfax and Sons Ltd\/} \nonfrenchspacing
is followed then the accused did not authorize the infringement.

\medskip\noindent Details of \frenchspacing
{\it RCA v. Fairfax\/} \nonfrenchspacing
are summarized above.
There are several similarities
between the hypothetical case and \frenchspacing
{\it RCA v. Fairfax\/}\null\nonfrenchspacing:
    the infringer was not an independent contractor to the
      accused;
    the accused did not sell or hire the infringer the means of
      infringing;
    the accused did not take reasonable steps to avoid the
      infringement;
    the accused knew, or had reason to anticipate or suspect,
      that the infringing act was to be, or was likely to be,
      done; and
    the specific infringement was not causally related to an
      incitement to infringe on the part of the accused.

However, there are two very significant differences
between the hypothetical case and \frenchspacing
{\it RCA v. Fairfax}\null\nonfrenchspacing.
In that case
    the infringer was not an employee of the accused; and
    the accused did not have the power to prevent the
      infringement.

Despite the fact that \frenchspacing
{\it RCA v. Fairfax\/} \nonfrenchspacing
and \frenchspacing
{\it APRA v. Miles\/} \nonfrenchspacing
are both decisions of
the Supreme Court of New South Wales,
there is nothing in \frenchspacing
{\it RCA v. Fairfax\/} \nonfrenchspacing
to warrant any change in my conclusion.

\end{document}

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