These elements of “Kookaburra” were found in the flute riff of “Downunder” and were found three times in various forms in “Downunder”. It was conceded that there was a causal connection between the two works. The main issues were whether there was an objective similarity between the two works and whether what had been taken from “Kookaburra” was a substantial part of that work.

Jacobson J held that there was sufficient objective similarity between the bars of “Kookaburra” and the part where they are heard in “Downunder”. The melodies were the same. This was reinforced by the fact that Colin Hay, a former Men at Work member, admitted that the relevant portion of “Downunder” was “unmistakably” the melody of “Kookaburra”. Jacobson J considered that nothing turned on the change of key or the difference in rhythm between the two songs. Nor did the difference in harmony make the phrases from “Kookaburra” unrecognisable. Furthermore, Jacobson J did not consider that the separation of the two phrases from “Kookaburra” by the basic hook of “Downunder” prevented a finding of reproduction.

The respondents argued that, if “Kookaburra” and “Downunder” are such icons, and the similarities are so strong, why did it take so long for anyone to recognise the connection. The connection was exposed on the television music quiz program “Spicks and Specks”. The judge concluded that whilst “Spicks and Specks” showed that there are difficulties in the recognition of the “Kookaburra” in “Downunder”, a sensitised listener can detect the aural resemblance between the two works. One wonders whether the sensitised listener is the true audience when determining an infringement of musical copyright.

Nonetheless, supporting this finding was the fact that it was open to infer that the composer of “Downunder”’s flute riff, who was not called as a witness, deliberately reproduced a part of “Kookaburra” for the purpose of evoking an Australian flavour in the flute riff.

In relation to the question of whether a substantial part of “Kookaburra” was taken, Jacobson J considered that “Kookaburra” was not so simple or lacking in substantial originality that a note for note reproduction of the entire work was required to meet the “substantial part” test. He did, however, place great weight on the fact that one of the respondents, Colin Hay, performed the words of “Kookaburra” when performing “Downunder” from 2002 onwards, to show that a substantial part was taken. This seems strange when Jacobson J accepted Mr Hay’s evidence that he was not aware of the appropriation of the bars of “Kookaburra” until the mid 1990s. His Honour did, however, note that 50% of “Kookaburra” had been taken.

This litigation is not yet concluded. The monetary compensation to which Larrikin Music is entitled is still to be determined. Larrikin Music has claimed 40-60% of the income received, which the respondents claim grossly over-reaches its entitlement. That would be an enormous sum for two bars of music.

The evidence on infringement in this case showed that the BitTorrent protocol was being used by those accessing the internet through iiNet’s facilities to download the applicants’ films and television shows. The critical issue in this proceeding was whether iiNet, by failing to take any steps to stop the infringing conduct, authorised the copyright infringement of the iiNet users.

Justice Cowdroy found that iiNet had knowledge of infringements occurring, and did not act to stop them.  However, he decided that iiNet did not authorise the copyright infringement, and commented that the copyright infringements occurred directly as a result of the use of the BitTorrent system, not the use of the internet, and iiNet did not create and did not control the BitTorrent system.  Further, he found that iiNet did not have relevant power to prevent those infringements occurring and did not sanction, approve or countenance the copyright infringement.

His Honour also commented that the result of the proceeding would disappoint the members of the AFACT as the evidence established that copyright infringement was occurring on a large scale. However, he went further to state that this does not necessitate or compel a finding of authorisation, merely because it is felt that ‘something must be done’ to stop the infringements.

His Honour also commented that the proceeding attracted widespread interest both in Australia and abroad and that as far as he was aware, this trial, involving suit against an ISP claiming copyright infringement on its part due to alleged authorisation of the copyright infringement of its users, is the first trial of its kind in the world to proceed to hearing and judgment.

On appeal, Vawdrey challenged the finding of infringement on the basis that the instructions to modify its design did not provide the requisite causal connection between the copyright work and the Vawdrey design because those instructions conveyed the idea of that work, rather than the expression of that idea. Moore and Bennett JJ noted that:

In circumstances where the objective similarities between the Vawdrey Engineering Drawings and the Subsequent Krueger Drawings were sufficiently great (as was the case) and Vawdrey had the opportunity to gain access to the latter drawings (as was the case), Vawdrey bore the onus of establishing how they created the Vawdrey Engineering Drawings and that this had not occurred as a result of copying … Vawdrey elected to give a false account (on her Honour’s findings) of how the various Vawdrey drawings developed. It would have been open to them to have given an honest account which may have had a bearing on whether the same conclusion would be reached. But they did not.

Accordingly, the necessary causal connection was held to be present. Discussing the same issue, Lindgren J expressed a preference for the view that:

access to the copyright work, is but one way of proving causal link and need not be present if the causal link is established without it.

The fact that the causal link was made via instructions from Camerons to Vawdrey, rather than direct access to the work by Vawdrey was therefore not relevant.

Vawdrey also challenged the finding that the trailers themselves were an infringement of the copyright in the drawings produced by Krueger. This challenge was also dismissed, with Moore and Bennett JJ stating:

the infringing drawings, the Vawdrey Engineering Drawings, were, on the evidence, drawn to illustrate what the completed trailers would look like at least from one important perspective, namely looking at the side of the trailer from (what is readily apparent) ground level. If the Vawdrey Engineering Drawings were themselves infringing copies of the Subsequent Krueger Drawings with the requisite degree of resemblance, then it is not a large step to deduce that the completed trailers would likewise exhibit the requisite degree of resemblance to the perspective illustrated in the drawings… the fact that from other perspectives (for example from the rear or from above) it is probable there is no real resemblance to the original work does not deny the existence of sufficient resemblance to establish reproduction of the original work in a three-dimensional form.

Other grounds of appeal raised by Vawdrey including in relation to its defence of innocent infringement and a challenge to the causal connection between the infringement and the damage said to have been caused to Krueger were also unsuccessful.

In 2003, the question of ownership of the copyright in the software arose due to apparent copying of that software by former employees of the Intelmail business. At about that time there were also discussions between Dilanchian and Vardanian about the later being “bought out” of the Intelmail business, however no agreement was reached. By 2008, the relationship between Dilanchian and Vardanian had completely broken down, and the issue of ownership of copyright in the software again arose.

There were no written agreements in place dealing with ownership of copyright works produced by Vardanian. Intelmail asserted that either it was the beneficial owner of the copyright in the software or alternatively that it had an implied, irrevocable and royalty free licence. Vardanian conceded that an implied licence existed, but disputed the terms of that licence propounded by Intelmail. Regarding whether Intelmail was an owner or licensee, Moore J noted that:

If there is a lacuna in the contract and it is necessary to imply the grant of some right to fill the lacuna involving a choice between possible alternative rights, the choice should be of that right which does not exceed what is necessary in the circumstances. … if the need can be satisfied by the grant of licence or an assignment of the copyright, the implication will be of the grant of licence only.

There was no doubt that the ownership of any copyright in software developed by Vardanian while an employee of the Intelmail business was owned by that business. With regard to the software produced while Vardanian was employed by his own company, Controlmech, his Honour noted that:

it is unlikely that either Mr Dilanchian or Mr Vardanian would have agreed to an arrangement that imperilled the rights of either or would have put at risk the continued growth or at least prosperity of the business …It is improbable they would have agreed to an arrangement which would, over time, invest in Controlmech copyright in the software over which Mr Dilanchian would have no control other than as a licensee and deny it the opportunity to control the source software.”

Accordingly, Moore J concluded that for the reasonable and effective operation of the contract between Controlmech and Intelmail, it was necessary to imply a term that Intelmail would retain equitable ownership of copyright in the software.

On the first issue, EMI relied on the fact that the rules of the competition stipulated that “All matter entered to become the property of the Guide Association”. His Honour rejected the submission that this gave rise to an assignment of copyright from Sinclair to the Girl Guides, noting that there was no evidence that Sinclair was aware of the rules of the competition, and no evidence of any contract in writing which might have satisfied the requirements of the Copyright Act then in force. Further, the conduct of both Sinclair and the Girl Guides subsequent to the competition was contrary to any intention or understanding that copyright in the song had been assigned.

The second issue arose in circumstances where there was a dispute as to the ownership of the copyright in Kookaburra between the Public Trustee, to whom Sinclair bequeathed her estate, and the Libraries Board of South Australia, to whom Sinclair had previously made a “Donation of Records”. Larrikin had originally obtained assignment of the copyright from the Public Trustee, but following this dispute entered a tripartite assignment with both parties and a further deed of confirmation after the commencement of the infringement proceeding. Without deciding on the effectiveness of the original assignment from the Public Trustee to Larrikin, Jacobson J concluded that:

Plainly, there are only two possibilities. Either the copyright was owned by the Public Trustee as trustee of Ms Sinclair’s deceased estate, or by the Libraries Board by reason of the donation of records. Whichever of those two institutions owned the copyright, both have assigned it to Larrikin in a clearly documented chain of title in the Deeds, to which I have referred. What is more, they confirmed the assignment in the Deed of Confirmation

Accordingly, Larrikin was found to be the owner of copyright in Kookaburra. In light of this finding the remaining issues in dispute, including whether “Down Under” reproduces a substantial part of “Kookaburra”, will now be determined.

The PIRs form part of Australia’s Copyright Act 1968 and protect publishers and authors who hold the Australian rights to a title from competition by suppliers of foreign editions of that title by restricting booksellers from importing or selling foreign published books.

There are some exemptions, which include individuals being able to order books from foreign sources.

The big retailing chains claim that if the recommendation is adopted by the government, the cost of books in Australia will fall. On the other hand, Australian publishers and independent booksellers claim that their businesses will become uneconomic, and fewer Australian writers willl be published. Time will tell if the Government adopts the recommendation, and if so, what its effect is.