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.
