Boomerang Investments Pty Ltd v Padgett (Scope of Injunction) [2020] FCA 1413

Boomerang Investments Pty Ltd v Padgett (Scope of Injunction) [2020] FCA 1413

Where there is a risk of repetition of infringing conduct, despite cessation and the end of prior licence arrangements, the injunction should extend to prevent future unlicensed communications of the relevant musical work by the respondent without the licence of the copyright owner. The injunction should refer to the 'copyright owner' rather than Boomerang. No declaration as to flagrancy should be made, as such findings are intermediate steps relevant to additional damages and not necessary in the absence of a further damages proceeding.

Parties
First Applicant: Boomerang Investments Pty Limited; Second Applicant: Johannes Van Den Berg; Third Applicant: Alexsandra Miller Malcolm Young; Fourth Applicant: Australasian Performing Right Association Ltd; Fifth Applicant: Australasian Mechanical Copyright Owners Society Ltd; First Respondent: John Padgett; Second Respondent: Lori Monahan; Third Respondent: Kobalt Music Publishing Australia Pty Limited; Fourth Respondent: Société Air France, SA
Jurisdiction
Australia
Judgment Date
02 October 2020
Procedural Posture
Application for Final Orders (copyright) / Form of Injunctive and Related Relief Following Liability Judgment
Outcome
Injunction granted in the form proposed by the Applicants; application for declaration of flagrancy declined; further assessment of additional damages deferred.
Legal Topics
Copyright, Injunctions, Additional Damages, Flagrancy in Copyright Infringement
Intellectual Property Copyright Injunctions Additional Damages Flagrancy in Copyright Infringement

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Parties

Boomerang Investments Pty Limited

First Applicant

Johannes Van Den Berg

Second Applicant

Alexsandra Miller Malcolm Young

Third Applicant

Australasian Performing Right Association Ltd

Fourth Applicant

Australasian Mechanical Copyright Owners Society Ltd

Fifth Applicant

John Padgett

First Respondent

Lori Monahan

Second Respondent

Kobalt Music Publishing Australia Pty Limited

Third Respondent

Société Air France, SA

Fourth Respondent

Procedural Posture

Application for Final Orders (copyright) / Form of Injunctive and Related Relief Following Liability Judgment

Legal Issues

  1. 1 Appropriate scope of injunction against copyright infringer (Air France)
  2. 2 Whether injunction should refer generally to 'copyright owner' or specifically to Boomerang
  3. 3 Entitlement to declaration of flagrancy under s 115(4) Copyright Act 1968 (Cth)

Ratio Decidendi

Where there is a risk of repetition of infringing conduct, despite cessation and the end of prior licence arrangements, the injunction should extend to prevent future unlicensed communications of the relevant musical work by the respondent without the licence of the copyright owner. The injunction should refer to the 'copyright owner' rather than Boomerang. No declaration as to flagrancy should be made, as such findings are intermediate steps relevant to additional damages and not necessary in the absence of a further damages proceeding.

Court Disposition

Injunction granted in the form proposed by the Applicants; application for declaration of flagrancy declined; further assessment of additional damages deferred.

Orders

  • Injunction to restrain Air France and Glass Candy from communicating the relevant work to the public in Australia without the licence of the copyright owner.
  • No declaration as to flagrancy under s 115(4) Copyright Act 1968 (Cth) is made.