Australasian Performing Right Association Limited v Metro on George Pty Limited [2004] FCA 1123

Australasian Performing Right Association Limited v Metro on George Pty Limited [2004] FCA 1123

Metro, by maintaining control over the venue, being put on notice of likely unlicensed performances, and failing to ensure the obtaining of APRA licences by hirers after notification, sanctioned or countenanced the infringements and thereby authorised breaches of copyright under s 36(1) of the Copyright Act 1968 (Cth). The warranty in the contract was insufficient as it was not enforced after Metro was aware of actual or likely infringement. Director Warwick William Doughty, as a knowing participant and decision-maker, was personally liable as a joint tortfeasor; Peter Warren Hearne did not have sufficient involvement or knowledge to be liable.

Parties
Applicant: Australasian Performing Right Association Limited; First Respondent: Metro on George Pty Limited; Second Respondent: Peter Warren Hearne; Third Respondent: Warwick William Doughty
Jurisdiction
Australia
Judgment Date
31 August 2004
Procedural Posture
Civil / Federal Court Trial Judgment
Outcome
Judgment for APRA against Metro on George Pty Limited and Warwick William Doughty; no liability found against Peter Warren Hearne; no additional damages awarded; quantum of damages to be determined or agreed.
Legal Topics
Copyright Infringement, Authorisation of Infringement, Liability of Directors, Contractual Notice and Termination
Intellectual Property Contract Copyright Infringement Authorisation of Infringement Liability of Directors Contractual Notice and Termination

Case Brief

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Parties

Australasian Performing Right Association Limited

Applicant

Metro on George Pty Limited

First Respondent

Peter Warren Hearne

Second Respondent

Warwick William Doughty

Third Respondent

Procedural Posture

Civil / Federal Court Trial Judgment

Legal Issues

  1. 1 Whether the respondents authorised or permitted public performances of copyright works without a licence under the Copyright Act 1968 (Cth)
  2. 2 Whether the Metro venue contract clauses constituted reasonable steps to prevent infringement
  3. 3 Whether the existence of warranty clauses in contracts with hirers was sufficient to exonerate Metro

Ratio Decidendi

Metro, by maintaining control over the venue, being put on notice of likely unlicensed performances, and failing to ensure the obtaining of APRA licences by hirers after notification, sanctioned or countenanced the infringements and thereby authorised breaches of copyright under s 36(1) of the Copyright Act 1968 (Cth). The warranty in the contract was insufficient as it was not enforced after Metro was aware of actual or likely infringement. Director Warwick William Doughty, as a knowing participant and decision-maker, was personally liable as a joint tortfeasor; Peter Warren Hearne did not have sufficient involvement or knowledge to be liable.

Court Disposition

Judgment for APRA against Metro on George Pty Limited and Warwick William Doughty; no liability found against Peter Warren Hearne; no additional damages awarded; quantum of damages to be determined or agreed.

Orders

  • Declaration that first and third respondents infringed copyright in specified works;
  • Applicant entitled to orders restraining infringement (injunction) - form to be determined after hearing from parties;