CBS Records Australia Ltd & Ors v Telmak Teleproducts (Australia) Pty Ltd [1987] FCA 673

CBS Records Australia Ltd & Ors v Telmak Teleproducts (Australia) Pty Ltd [1987] FCA 673

The language of s.10(3)(c), referring to a record embodying a sound recording or a substantial part of a sound recording, concerns actual embodiment of the very sounds on the original record, however copied. The tracks on Chart Sounds were made by other performers through vocal, musical and other imitation without taping or mechanically transferring the sounds from the masters. Although imitation may be copying in a colloquial sense, s.10(3)(c) is inapt to extend the exclusive right to such independently performed sound alike recordings.

Jurisdiction
Australia
Judgment Date
27 November 1987
Procedural Posture
Copyright Proceeding Concerning Alleged Infringement of Copyright in Sound Recordings by Sound Alike Records and Cassettes / Separate Trial of Questions Pursuant to Order 29 Rule 2(a) of the Federal Court Rules on an Agreed Statement of Facts
Outcome
The four separate questions were answered No, and the respondent was awarded costs of the separate proceeding.
Legal Topics
['sound Recordings' 'sound Alike Recordings' 'copies of Sound Recordings' 'copyright Infringement' 'separate Questions']
['copyright Law'] ['sound Recordings' 'sound Alike Recordings' 'copies of Sound Recordings' 'copyright Infringement' 'separate Questions']

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Procedural Posture

Copyright Proceeding Concerning Alleged Infringement of Copyright in Sound Recordings by Sound Alike Records and Cassettes / Separate Trial of Questions Pursuant to Order 29 Rule 2(a) of the Federal Court Rules on an Agreed Statement of Facts

Legal Issues

  1. 1 ['Whether the record CHART SOUNDS 16 HIT SONGS NO. 1 was a copy of the sound recording EUROPE "The Final Countdown" within the meaning of Section 85(a) of the Copyright Act 1968.' 'Whether the record CHART SOUNDS 16 HIT SONGS NO. 1 was a copy of the sound recording GREGORY ABBOTT "Shake You Down" within the meaning of Section 85(a) of the Copyright Act 1968.' 'Whether the record CHART SOUNDS 16 HIT SONGS NO. 1 was a copy of the sound recording ORAN "JUICE" JONES "The Rain" within the meaning of Section 85(a) of the Copyright Act 1968.' 'Whether the record CHART SOUNDS 16 HIT SONGS NO. 1 was a copy of the sound recording DEAD OR ALIVE "Something in My House" within the meaning of Section 85(a) of the Copyright Act 1968.' 'Whether a later sound recording made by other performers by imitation embodies the sounds in the original sound recording for the purposes of s.10(3)(c) of the Copyright Act 1968.']

Ratio Decidendi

The language of s.10(3)(c), referring to a record embodying a sound recording or a substantial part of a sound recording, concerns actual embodiment of the very sounds on the original record, however copied. The tracks on Chart Sounds were made by other performers through vocal, musical and other imitation without taping or mechanically transferring the sounds from the masters. Although imitation may be copying in a colloquial sense, s.10(3)(c) is inapt to extend the exclusive right to such independently performed sound alike recordings.

Court Disposition

The four separate questions were answered No, and the respondent was awarded costs of the separate proceeding.

Orders

  • ['The questions referred to the court pursuant to Order 29 rule 2(a) on 16 October 1987 be answered: 1. No. 2. No. 3. No. 4. No.' 'The applicants pay the costs of the respondent in this separate proceeding.']