Holder, Raymond v Searle, Bradley William [1998] FCA 1775

Holder, Raymond v Searle, Bradley William [1998] FCA 1775

The prosecution failed to prove all elements of the offences in QG 187 and QG 188, and failed in QG 189 except as to the five discs of 'Speechless' and four discs of 'Bye Bye, Love'. Critical deficiencies were the failure to establish copyright ownership by a legal entity in several films, as business divisions are not legal entities. Subsistence and ownership of copyright must be proved beyond reasonable doubt; mere claims on packaging or business records referring to non-entities are insufficient.

Parties
Prosecutor: Raymond Holder; Defendant: Bradley William Searle
Jurisdiction
Australia
Judgment Date
23 October 1998
Procedural Posture
Criminal Prosecution / Reasons for Judgment and Orders After Trial
Outcome
Informations in QG 187 and QG 188 dismissed; in QG 189, prosecution made out in respect only of five discs of 'Speechless' and four of 'Bye Bye, Love'; adjourned for submissions on orders, penalty, and costs.
Legal Topics
Copyright Infringement, Parallel Importation, Cinematograph Films, Ownership and Assignment of Copyright, Criminal Procedure
Intellectual Property Law Criminal Law Copyright Infringement Parallel Importation Cinematograph Films Ownership and Assignment of Copyright Criminal Procedure

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Parties

Raymond Holder

Prosecutor

Bradley William Searle

Defendant

Procedural Posture

Criminal Prosecution / Reasons for Judgment and Orders After Trial

Legal Issues

  1. 1 Whether the defendant/company was knowingly concerned in the possession, importation, or sale of infringing copyright material (laser video discs) under Copyright Act 1968 (Cth)
  2. 2 Whether copyright subsisted and ownership was established in the relevant cinematograph films at the dates of the alleged offences
  3. 3 Whether the company or Mr Searle personally possessed the discs with intent for sale or hire by way of trade

Ratio Decidendi

The prosecution failed to prove all elements of the offences in QG 187 and QG 188, and failed in QG 189 except as to the five discs of 'Speechless' and four discs of 'Bye Bye, Love'. Critical deficiencies were the failure to establish copyright ownership by a legal entity in several films, as business divisions are not legal entities. Subsistence and ownership of copyright must be proved beyond reasonable doubt; mere claims on packaging or business records referring to non-entities are insufficient.

Court Disposition

Informations in QG 187 and QG 188 dismissed; in QG 189, prosecution made out in respect only of five discs of 'Speechless' and four of 'Bye Bye, Love'; adjourned for submissions on orders, penalty, and costs.

Orders

  • Information in QG 187 of 1996 is dismissed.
  • Information in QG 188 of 1996 is dismissed.