Henley Arch Pty Ltd v Tamawood Pty Ltd  FCA 204 (14 March 2003)
A series of cases involving project home companies raised the question: What amounts to reproduction of a substantial part in copyright law?
Justice Spender of the Federal Court in Brisbane recently handed down the latest in a string of Australian cases dealing with disputes between rival home building companies over copyright in house plans. The judgment discusses the question of what amounts to ‘reproduction of a substantial part’ for the purposes of copyright law (for copyright infringement to occur, a person must reproduce in material form a substantial part of a copyrighted work).
In this case, Henley Arch took action against Tamawood alleging copyright infringement in the plans of two of its houses, known as the ‘Chirnside’ and the ‘Baltimore’. Justice Spender found in favour of Henley Arch, holding that Tamawood had infringed Henley Arch’s copyright in the plans for both houses and copyright in the houses themselves. His Honour outlined the relevant authorities on what it means to ‘reproduce’ a copyrighted work. ‘Reproduction’, according to the cases, requires both resemblance to, and actual use of, the copyrighted work.
Significant to His Honour’s finding of copyright infringement of Henley Arch’s ‘Chirnside’ plans and house, were two factors. First, there was a high degree of objective similarity between the two sets of plans and the two houses. Secondly, the client for whom Tamawood had created the infringing plans (and subsequently built the infringing house) gave contradictory and, His Honour found, untruthful evidence about the manner in which the plans created by Tamawood came about. In effect, she denied that the changes she had requested Tamawood to make were in any way connected to the plans for ‘Chirnside’, even though she had visited such a home and had a copy of a brochure outlining the house plan.
There has been an unfortunate trend in some copyright cases to equate any deliberate copying of a work (no matter how minor) with a finding that there must have been reproduction of a substantial part of the work, and therefore infringement. Fortunately, this case did not continue that trend, because the evidence established to the satisfaction of the judge that what had been reproduced was extensive.
However, it is important to be aware that where deliberate copying is established (even if what is copied is not a substantial part), courts may take the view, however erroneously, that copyright infringement inevitably follows.
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