Authorization.cls

HIERARCHY

    HC-3        "three judges of the High Court of Australia"
    NSW-SC-FC   "the Full Court of the Supreme Court of New South Wales"
    NSW-SC      "the Supreme Court of New South Wales"
  = Vic-SC      "the Supreme Court of Victoria"
    PC          "the Judicial Committee of the Privy Council"
    CA          "the English Court of Appeal"
    Ch          "the Chancery Division of the English High Court"

AREA            Authorization

OPENING         "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{{\it Falcon v.
                 Famous Players Film Co.\/} [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{{\it University of New South Wales v.
                 Moorhouse\/} (1975) 133 CLR 1 at 13 per Gibbs J.}"

RESULTS

    Auth        "the accused authorized the infringement"
    Not-Auth    "the accused did not authorize the infringement"
    Liable      "the accused is liable (directly or vicariously) for the
                 infringement"

ATTRIBUTE       % infringer was employee

    QUESTION    "Was the infringer an employee of the accused"
    YES         "the infringer was an employee of the accused" Liable
    NO          "the infringer was not an employee of the accused"
                 Auth Not-Auth
    UNKNOWN     "it is not known whether the infringer was an employee
                 of the accused"
    HELP        "If the accused had control over the infringer's manner of
                 doing her/his work then the infringer was an employee of the
                 accused.  If the infringer undertook to do something for the
                 accused and had discretion as to the manner in which it was
                 to be done then the infringer was an independent contractor
                 to the accused, not an employee."

ATTRIBUTE       % infringer was independent contractor

    QUESTION    "Was the infringer an independent contractor to the accused"
    YES         "the infringer was an independent contractor to the accused"
                 Auth
    NO          "the infringer was not an independent contractor to the
                 accused" Not-Auth Liable
    UNKNOWN     "it is not known whether the infringer was an
                 independent contractor to the accused"
    HELP        "If the infringer undertook to do something for the accused
                 and had discretion as to the manner in which it was to be
                 done then the infringer was an independent contractor to the
                 accused.  If the accused had control over the infringer's
                 manner of doing her/his work then the infringer was an
                 employee of the accused, not an independent contractor."

ATTRIBUTE       % accused sold or hired infringer means of infringing

    QUESTION    "Did the accused sell or hire the infringer the means of
                 infringing"
    YES         "the accused sold or hired the infringer the means of
                 infringing" Auth
    NO          "the accused did not sell or hire the infringer the means of
                 infringing"
    UNKNOWN     "it is not known whether the accused sold or hired the
                 infringer the means of infringing"

ATTRIBUTE       % accused had power to prevent infringement

    QUESTION    "Did the accused have the power to prevent the infringement"
    YES         "the accused had the power to prevent the infringement"
                 Auth Liable
    NO          "the accused did not have the power to prevent the
                 infringement" Not-Auth
    UNKNOWN     "it is not known whether the accused had the power to
                 prevent the infringement"
    HELP        "If the accused had some control over the infringer, or
                 the means by which the infringement was committed, then the
                 accused had the power to prevent the infringement."

ATTRIBUTE       % accused took reasonable steps to avoid

    QUESTION    "Did the accused take reasonable steps to avoid the
                 infringement"
    YES         "the accused took reasonable steps to avoid the infringement"
                 Not-Auth
    NO          "the accused did not take reasonable steps to avoid the
                 infringement" Auth Liable
    UNKNOWN     "it is not known whether the accused took reasonable
                 steps to avoid the infringement"
    HELP        "Whether particular steps were reasonable depends on the
                 facts of the case."

ATTRIBUTE       % accused knew that infringement would occur

    QUESTION    "Did the accused know, or have reason to anticipate or
                 suspect, that the infringing act was to be, or was likely to
                 be, done"
    YES         "the accused knew, or had reason to anticipate or suspect,
                 that the infringing act was to be, or was likely to be, done"
                 Auth Liable
    NO          "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" Not-Auth
    UNKNOWN     "it is not known whether the accused knew, or had reason to
                 anticipate or suspect, that the infringing act was to be, or
                 was likely to be, done"
    HELP        "Authorization requires a mental element.  However, it is not
                 necessary for the accused to have known that a particular
                 infringing act was to occur; merely that, from her or his
                 awareness of the circumstances, she or he recognized that it
                 was likely that such an act might occur."

ATTRIBUTE       % specific infringement was causally related

    QUESTION    "Was the specific infringement causally related to an
                 incitement to infringe on the part of the accused"
    YES         "the specific infringement was causally related to an
                 incitement to infringe on the part of the accused"
                 Auth Liable
    NO          "the specific infringement was not causally related to an
                 incitement to infringe on the part of the accused" Not-Auth
    UNKNOWN     "it is not known whether the specific infringement was
                 causally related to an incitement to infringe on the part of
                 the accused"
    HELP        "General exhortations to infringe will not amount to
                 authorization unless specific acts of infringement can be
                 established.  There must be some relationship creating a link
                 or connection, however tenuous, between the authorizer and
                 the infringer."

CASE            "Performing Right Society Ltd v. Ciryl Theatrical Syndicate
                 Ltd"
                "PRS v. Ciryl"

    CITATION    "[1924] 1 KB 1"
    YEAR        1923
    COURT       CA
    FACTS       (NYNYNNN)
    RESULT      Not-Auth

    SUMMARY     "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."

CASE            "Falcon v. Famous Players Film Co."
                "Falcon v. Famous Players"

    CITATION    "[1926] 2 KB 474"
    YEAR        1926
    COURT       CA
    FACTS       (NNYNNYY)
    RESULT      Auth

    SUMMARY     "the author of a play assigned to Falcon the sole right to
                 perform the play in the United Kingdom and, twenty-one years
                 later, sold to Famous Players the film rights to the play
                 throughout the world.  Famous Players made a film of the play
                 in America, imported it to England, and purported to let the
                 right to exhibit it to the proprietor of a cinema.  Falcon
                 brought an action to restrain Famous Players from infringing
                 his performing right.  Famous Players denied that Falcon had
                 such an exclusive right and claimed that, even if he had,
                 they had not infringed it.\par

                 The Court of Appeal held that Falcon did have an exclusive
                 right to perform the play in the UK, and that Famous Players
                 had infringed it.\par

                 Scrutton LJ referred to the hiring agreement that impliedly
                 stipulated that the cinema proprietor should exhibit.  ``They
                 have imposed an obligation upon him that he shall perform,
                 and in my view persons who do that perform
                 themselves.''\footnote{ibid. at 495.}  Hence Scrutton LJ
                 found no need to consider whether Famous Players had
                 authorized the cinema proprietor to infringe.\par

                 Bankes and Atkin LJJ held that Famous Players had authorized
                 the infringement within the meaning of s. 1(2) of the
                 Copyright Act 1911 (UK).  Bankes LJ's view (quoted above)
                 that the word ``authorize'' should be understood in its
                 ordinary dictionary sense of ``sanction, approve, and
                 countenance'' has been adopted by most subsequent courts in
                 the UK and in Australia."

CASE            "Mellor v. Australian Broadcasting Commission"
                "Mellor v. ABC"

    CITATION    "[1940] AC 491"
    YEAR        1940
    COURT       PC
    FACTS       (NYNYNYY)
    RESULT      Auth

    SUMMARY     "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."

CASE            "Winstone v. Wurlitzer Automatic Phonograph Co. of Australia
                 Pty Ltd"
                "Winstone v. Wurlitzer"

    CITATION    "[1946] VLR 338"
    YEAR        1946
    COURT       Vic-SC
    FACTS       (NNYYNYY)
    RESULT      Auth

    SUMMARY     "Wurlitzer installed a juke-box in a shop and had an agreement
                 with the shop's proprietor by which Wurlitzer maintained and
                 repaired the machine, and supplied it with records which
                 Wurlitzer selected.  The juke-box played a musical work, the
                 copyright in which was owned by Winstone.\par

                 Herring CJ held that the proprietor of the shop had publicly
                 performed the musical work and---because of nature of the
                 agreement between Wurlitzer and the shop's proprietor, and
                 because Wurlitzer selected the records---Wurlitzer had
                 authorized that infringing performance 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)."

CASE            "Australasian Performing Right Association Ltd v. Miles"
                "APRA v. Miles"

    CITATION    "[1962] NSWR 405"
    YEAR        1961
    COURT       NSW-SC
    FACTS       (YNNYNYY)
    RESULT      Liable

    SUMMARY     "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)."

CASE            "Australasian Performing Right Association Ltd v.
                 Canterbury-Bankstown League Club Ltd"
                "APRA v. Canterbury-Bankstown"

    CITATION    "[1964--65] NSWR 138"
    YEAR        1964
    COURT       NSW-SC-FC
    FACTS       (UUNYNYY)
    RESULT      Auth

    SUMMARY     "the club engaged a dance band to play music for dances that
                 it held at its premises.  The choice of the music to be
                 played was left to the band leader.\par

                 Herron CJ, Ferguson and Asprey JJ held that whether the
                 bandleader was an employee or an independent contractor was
                 immaterial.  ``He was authorized to play and was allowed a
                 discretion to select whatever music he liked.  He was thus
                 given a general authority to play whatever music he liked
                 irrespective of copyright.''\footnote{ibid. at 140 per
                 Ferguson J.}  So (if he was an employee) the club was
                 vicariously liable for---or (if he was an independent
                 contractor) the club was liable for the authorization
                 of---the bandleader's breach of the {\it Copyright Act
                 1912\/} (Cth)."

CASE            "University of New South Wales v. Moorhouse"
                "UNSW v. Moorhouse"

    CITATION    "(1975) 133 CLR 1"
    YEAR        1975
    COURT       HC-3
    FACTS       (NNYYNYN)
    RESULT      Auth

    SUMMARY     "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
                 {\it UNSW v. Moorhouse\/} as far as photocopying in
                 educational institutions is concerned.}  Gibbs J's statement
                 about what constitutes authorization of an infringement is
                 quoted above."

CASE            "A&M Records Inc. v. Audio Magnetics Inc. (UK) Ltd"
                "A&M v. Audio Magnetics"

    CITATION    "[1979] FSR 1"
    YEAR        1978
    COURT       Ch
    FACTS       (NNYNNYN)
    RESULT      Not-Auth

    SUMMARY     "A&M Records and twenty-three others alleged that Audio
                 Magnetics was inciting the public to infringe their copyright
                 in sound recording by advertising blank cassette tapes.\par

                 Foster J held that there was no ``particular specific
                 authorisation'';\footnote{ibid. at 10.} there was not
                 sufficient causal relationship between the alleged
                 authorization and the actual breach.  ``It was not sufficient
                 to allege authorisation at large.  Authorisation meant
                 sanctioning, express approval or countenancing of an actual
                 breach of copyright by some act directly related to that
                 breach.''\footnote{ibid. at 2.}"

CASE            "RCA Corporation v. John Fairfax and Sons Ltd"
                "RCA v. Fairfax"

    CITATION    "[1981] 1 NSWLR 251"
    YEAR        1981
    COURT       NSW-SC
    FACTS       (NNNNNYN)
    RESULT      Not-Auth

    SUMMARY     "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)."

IDEAL

    FACTS       (NYYYNYY)
    RESULT      Auth

IDEAL

    FACTS       (NNNNYNN)
    RESULT      Not-Auth

IDEAL

    FACTS       (YNUYNYU)
    RESULT      Liable

Other SHYSTER case law specifications: Finder, Employee and Natural.
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Last modified:  30 April 1995