Vawdrey Australia Pty Ltd v Krueger Transport Equipment Pty Ltd

(2009) 254 ALR 386; [2009] FCAFC 156

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Interrogate

Catchwords

1. Copyright
2. › Infringement
3. › Causal connection
4. › Indirect copying
5. › Oral instructions by intermediary to bring infringing work into conformity with copyright work
6. › Onus on alleged infringer to explain similarities where objective similarity and opportunity of access established
7. › Copyright Act 1968 (Cth), ss 14(1), 31(1)
1. Copyright
2. › Infringement
3. › Three-dimensional reproduction of two-dimensional work
4. › Manufacture of trailers as reproduction of engineering drawings
5. › Whether planar elevation reproduced in constructed object
6. › Copyright Act 1968 (Cth), s 21(3)
1. Copyright
2. › Infringement
3. › Reproduction of substantial part
4. › Distinction between idea and expression
5. › Whether similarities in number of posts and size and shape of gates constituted reproduction of expression rather than mere concept
6. › Copyright Act 1968 (Cth), s 14(1)
1. Copyright
2. › Damages
3. › Innocent infringement defence
4. › Whether reasonable grounds for suspecting infringement
5. › Formulaic denials rejected by trial judge
6. › Copyright Act 1968 (Cth), s 115(3)

Quick Take

Where objective similarities between a copyright work and an allegedly infringing work are sufficiently great and the alleged infringer had an opportunity of access, the onus shifts to the alleged infringer to explain the similarities; formulaic denials that are rejected by the trial judge will not discharge that onus. Indirect copying through oral instructions from an intermediary (not the agent of the alleged infringer) can establish the requisite causal connection for copyright infringement. The manufacture of a three-dimensional object can constitute infringement of a two-dimensional planar elevation drawing where the relevant features of the drawing are reproduced in the constructed object, and it is unnecessary to examine the entire three-dimensional object from all perspectives.