Discussion
185 For the reasons given below the contentions of the EMI parties and Mr Hay should not be accepted.
186 Neither D'Almaine v Boosey nor IceTV requires the approach the EMI parties and Mr Hay advocated. The test is not whether, considered overall, Down Under is similar to Kookaburra (Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490 at 497). It is whether a substantial part of the copyright work has been taken (s 14(1) of the Copyright Act).
187 In Elwood Clothing, Lindgren, Goldberg and Bennett JJ (at [41]) agreed with the statement in Metricon Homes at [23] that the "correct approach" is:
(1) to identify the work in suit in which copyright subsists,
(2) to identify in the alleged infringing work the part taken (ie derived or copied) from the work in suit, and
(3) to determine whether the part taken constitutes a substantial part of the work in suit.
188 In Dixon Investments at 494 it was explained that the third step in this approach involves consideration of the significance of the part taken to the work - that is the copyright work - as a whole so that a "a vital or material part, even though it may be only a small part of it [the copyright work] in quantity … may nevertheless be sufficient".
189 To the same effect are the observations of Mason CJ (in dissent in the result but not about the principles of copyright involved) in Autodesk Inc v Dyason (No 2) (1992) 176 CLR 300 at 305.
190 In Designers Guild v Russell Williams at 2425 this focus on what was taken is the reason for the statement by Lord Millett that "while the copied features must be a substantial part of the copyright work, they need not form a substantial part of defendant's work … Thus the overall appearance of the defendant's work may be very different from the copyright work. But it does not follow that the defendant's work does not infringe the plaintiff's copyright". Lord Millett (albeit dealing with a design case) described the correct approach as one in which once the judge "has found that the defendants' design incorporates features taken from the copyright work, the question is whether what has been taken constitutes all or a substantial part of the copyright work. This is a matter of impression, for whether the part taken is substantial must be determined by its quality rather than its quantity. It depends upon its importance to the copyright work. It does not depend upon its importance to the defendants' work" (at 2426).
191 This principle - that is, the importance of the part taken to the copyright work in order to determine whether a substantial part of that work has been reproduced - is also referred to in G Ricordi & Co (London), Ltd v Clayton & Waller, Ltd [1930] Mac CC 154. Although the outcome in that case turned on lack of reproduction, Luxmore J said (at 162 ) that "while it is quite true that eight bars of a particular air may form a substantial part of that air…the eight bars from the [copyright work in suit] are not the most distinctive or important part of that air at all".
192 In Francis Day v Bron it was common ground that the first eight bars of the copyright work were a substantial part of that work (at 609). The question was one of reproduction in circumstances where the alleged infringer's evidence that no conscious copying had occurred was accepted. In that context, Wilberforce J at first instance analysed the structure, theme, notes, harmonic structure, and rhythm of the two songs and found that the degree of similarity was such that an ordinary experienced listener might think that perhaps one had come from the other. The appellate court agreed, noting that reproduction does not require identity and citing in support D'Almaine v Boosey amongst other decisions (at 612)
193 Properly analysed D'Almaine v Boosey and IceTV do not stand for any contrary proposition.
194 In D'Almaine v Boosey the airs of the operatic copyright work had been taken albeit with some adaptations as necessary to re-arrange an opera as quadrilles for dancing. It is in this context that it was said that it is "the air or melody which is the invention of the author so taking the whole air is a piracy whilst taking part with alterations such as in a different order or broken by the intersection of other airs might not be piracy, the result depending on whether the air taken is substantially the same with the original". In other words, D'Almaine v Boosey recognised that it is the air taken as it appears in the works which is relevant to the question of reproduction with "the ear [telling you] whether it is the same".
195 The copyright work in suit in Ice TV involved a compilation in the form of a weekly television schedule. This context is important, as the reasons for judgment disclose. The alleged infringer accepted that the copyright subsisted in the weekly schedules but denied that its taking of individual items from the compilation infringed copyright (at [11]). The issues for resolution were thus determined in this particular factual context. As French CJ, Crennan and Kiefel JJ said at [30]-[31], the principle that it is necessary to consider not only the extent of what was copied but also its quality "has a long provenance and… is particularly apposite when considering a compilation". The relevance of the status of the copyright work as a compilation was further emphasised by the heading before [72] of their reasons, "Compilations and 'substantial part'". In that section their Honours cited another compilation case, Leslie v Young & Sons [1894] AC 335 at 341 to the effect that, in such a case (that is, dealing with a compilation), "it ought to be clearly established that, looking at these tables as a whole, there has been a substantial appropriation by the one party of the independent labour of the other, before any proceeding on the ground of copyright can be justified". The reference by Gummow, Heydon and Hayne JJ to "legitimate appropriation" at [157] is also to be understood in this context. The concept of "legitimate appropriation" to which their Honours referred, as the trial judge said in the present case, does not involve the creation of any new principle; it reflects the fact that the statute requires that a substantial part of the copyright work be reproduced before there is infringement. As Larrikin submitted, legitimate appropriation is appropriation of a non-substantial part of a copyright work. As the reasons in [157] disclose, the question whether the slivers of information taken themselves were original works was seen by their Honours as a distraction in that case from the task of comparing "what was taken and the whole of the work in suit". This is the background leading to the statement at [169] that it was necessary for the copyright owner to establish clearly that "looking at the Weekly Schedule [the copyright work] as a whole, there has been a substantial reproduction in the particular use by IceTV".
196 It is apparent from this discussion that the approach of the EMI parties and Mr Hay is inconsistent with established principle insofar as it involves propositions that the trial judge erred by:
first, adopting an overly mechanistic or fragmented approach in his consideration of objective similarity and substantial part; and
second, having determined objective similarity by focusing on the copyright work (Kookaburra) and not the alleged infringing work (Down Under) to determine whether a substantial part of Kookaburra had been reproduced.
In answering both questions in favour of Larrikin it necessarily followed that the trial judge found that the appropriation of Kookaburra in Down Under was not a "legitimate appropriation" as referred to in IceTV.
197 The discussion of the relevant authorities above shows that the trial judge's approach of dealing with objective similarity and substantiality sequentially was orthodox and did not involve any impermissible fragmentation of the relevant inquiry. A fair reading of his reasons of 4 February 2010 does not support a conclusion that he determined the case merely by an impermissible "note for note comparison" (Austin v Columbia Graphophone Company Ltd [1923] Mac CC 398 at 415). That is not to say, however, that the notes are irrelevant. As stated in Austin v Columbia Graphophone at 409 "music must be treated by the ear as well as by the eye". In Francis Day v Bron Wilberforce J at first instance, whose approach was said by the EMI parties and Mr Hay to disclose the error in that of the trial judge, considered the same range of matters as the trial judge in the present case including the notes.
198 The trial judge considered "aural comparison of the musical elements, as well as my visual comparison of the notated songs" (at [158]), as well as melody, key, tempo, harmony and structure. It is true that the trial judge defined the relevant melodies (at [163]) as involving a comparison between, first, the flute riff in Down Under when it plays the fourth bar of Dr Ford's Example D, and the second bar of Kookaburra and, second, the flute riff in Down Under when it plays the second and fourth bars of Dr Ford's Example E, and the first and second bars of Kookaburra. This involved the trial judge in doing nothing more than implementing the first two steps of what was described as the correct approach in Metricon Homes at [23] and Elwood Clothing at [41] by:
(1) identifying the work in suit in which copyright subsists (that is, Kookaburra);
(2) identifying in the alleged infringing work (that is, Down Under) the part taken (i.e. derived or copied) from the work in suit (that is, the flute riff in Down Under when it plays the fourth bar of Dr Ford's Example D and the second and fourth bars of Dr Ford's Example E); and
(3) determining whether the part taken constitutes a substantial part of the work in suit (that is, by reference to the importance of the part taken to Kookaburra, not to Down Under).
199 It is not the case that, by this definition of the relevant melody, the trial judge failed to consider the other factors which he identified as relevant including the aural perception, key, tempo, harmony and structure of the part taken from Kookaburra as it appears in Down Under. The trial judge also considered the facts that Down Under was in a different key, had a somewhat different rhythm, and involved a different harmonic shape due to the difference in key, and that the part taken from Kookaburra as it appears in the flute riff in Down Under involves a different structure in which bars of Kookaburra are separated and punctuated by Men at Work's distinctive sound and the basic hook of Down Under. As the trial judge correctly said (at [195]), the question of structure is not concerned with the entirety of the three-minute recording of Down Under. It is concerned with the flute riff in which the parts taken from Kookaburra appear. For the trial judge to have done otherwise and adopted the approach of the EMI parties and Mr Hay of determining objective similarity by reference to the whole of Down Under, would have involved a departure from established principle. Equally, for the trial judge to have determined substantiality by reference to the importance (or lack of importance) of the part taken from Kookaburra to Down Under rather than the importance of the part taken to Kookaburra itself (that is, by looking at the quality of what was taken by reference to the alleged infringing work as a whole and not the copyright work as a whole) would have been inconsistent with principle.
200 Nor can there be any real complaint about the trial judge having dealt with melody, key, tempo and rhythm, harmony and context and structure sequentially in his reasons. No doubt it was convenient to arrange the reasons in this way with separate headings for each factor. But the substance of the factors does not support an inference that the trial judge dealt with each factor in artificial isolation from all other factors. For example, it is apparent that in dealing with melody the trial judge was well aware of the separation of the bars from Kookaburra as they appear in the flute riff. This underlies Mr Armiger's evidence referred to in this part of the reasons (at [167]) of the "shared phrases" in the two as part of the "answering" flute melody in Down Under. In the same section similarities between notes are also identified (at [170]). In dealing with key the trial judge referred to the aural perception of the tune (at [176]) and the relative pitches allowing a listener to identify the songs (at [177]). In dealing with tempo and rhythm, the trial judge dealt with the slur at the end of the bars in Kookaburra as they appear in the flute riff in Down Under. In dealing with harmony, the trial judge considered the recognisability of the bars from Kookaburra as such when they appear in the flute riff in Down Under (at [189]). In dealing with context and structure, the trial judge dealt with the submission of the EMI parties and Mr Hay that "harmony, structure and, to a lesser extent, key affect how one hears a work" (at [193]) as well as the separation of the bars of Kookaburra as they appear in the flute riff by Men at Work's distinctive sound in the basic hook of Down Under (at [195]).
201 This analysis shows that the submissions of the EMI parties and Mr Hay that the trial judge's approach was "overly mechanistic" and "fragmented" cannot be accepted.
202 For the purpose of determining objective similarity the trial judge was assisted by experts for both sides. In addition to their contention that the trial judge had become a sensitised listener and incorrectly applied his sensitised ear to the task overly assisted by expert evidence, the EMI parties and Mr Hay suggested that there was some error in such expert evidence being available at all. To the extent that this was suggested, it should be rejected. The use of expert evidence to assist in resolving the issue of objective similarity is orthodox. For example, evidence for the same purpose was admitted in Austin v Columbia Graphophone, D'Almaine v Boosey, Francis Day v Bron, G Ricordi v Clayton, and CBS Records Australia Ltd v Gross (1989) 15 IPR 385. More to the point, the EMI parties and Mr Hay relied on the expert evidence of Mr Armiger addressing the same issue. No error can be sustained merely because the trial judge used the expert evidence the parties chose to make available to him. The error, if there be one, is confined to the contention that the trial judge applied the wrong test to the task - namely, that of a sensitised listener overly assisted by expert evidence rather than the ordinary reasonable listener. Before dealing with this issue it is appropriate to resolve the contention that the trial judge failed to have regard to the fact that the evidence supported a finding that the originality of Kookaburra lay only in its status as a round with the consequence that, as Down Under reproduced no part of the round, the claim for copyright infringement should have been dismissed.
203 It is true that Ms Sinclair composed Kookaburra as a round. It was entered into a competition for the creation of rounds, was described as a round in the 1934 Girl Guides edition and was consistently identified thereafter by Ms Sinclair as a round. The trial judge was aware of that fact and the nature of a round. He described Kookaburra as an "iconic Australian round" at [1], referred to Dr Ford's evidence describing it as a round at [13], identified the full title of the work (Kookaburra Round in 4 Parts) at [70], explained the nature of a round at [71] (a song "intended to be sung by four voices or groups of voices in a way in which all the parts continuously repeat"), referred to Dr Ford's evidence that Ms Sinclair intended it to be sung as a round at [126], and compared Down Under's more layered structure to Ms Sinclair's round at [195]. The trial judge also specifically considered the submission that there was no evidence as to the degree of skill involved in the composition of Kookaburra other than its composition as a round (at [223]-[225], quoted above).
204 According to the EMI parties and Mr Hay the reasons at [223]-[225] disclose a misconception by the trial judge of their case and a consequent failure to consider the limited originality of Kookaburra as a round in circumstances where the round was not reproduced in any way in Down Under. The misconception, they said, is evident from the trial judge's reference to a qualification in [224] that Dr Ford had given evidence that writing a round is a "tricky and rather amusing business" because all the phrases have to fit on top of each other. The EMI parties and Mr Hay submitted that, properly understood, this was not a qualification to their contention that Kookaburra's originality derived only from its composition as a round. Rather, Dr Ford's evidence confirmed that contention. Larrikin submitted that [224] disclosed no misconception. The trial judge's description of the qualification presented by Dr Ford's evidence was correct. The effect of that evidence was that all the phrases had to fit on top of each other to form the round. Hence, there was skill and originality in the work as a whole both as a series of phrases or melody and as a melody forming a round.
205 The EMI parties and Mr Hay sought to dismiss Larrikin's submission as involving some, apparently impermissible, dual original status of Kookaburra. Larrikin's submission, however, should be accepted. The trial judge must be inferred to have used the word "qualified" in [224] deliberately. The context makes this plain. He was dealing directly with the submission about lack of skill in the writing of Kookaburra other than as a round in [223]. He then referred to the need to qualify that submission by reference to Dr Ford's evidence in [224]. The qualification refers to all the phrases of the song having to fit over the top of each other. Thus, and contrary to the submission of the EMI parties and Mr Hay, there was evidence of the skill involved in the composition of all the phrases of Kookaburra. This conclusion is supported by other references in the reasons where the evidence discloses the distinctive and recognisable melody of Kookaburra whether sung as a round or not (for example, at [121] and [149], [168]).
206 On the basis of the evidence before him, the trial judge was entitled to conclude that there was skill in the composition of Kookaburra as a song with a melody capable of being sung as a round. It cannot be said that, in treating Kookaburra as a song capable of being sung as such or as a round, the trial judge failed to consider what constituted Kookaburra as an original musical work. Nor can it be said that the trial judge impermissibly treated each individual note of Kookaburra as a "sliver" (to use the word from IceTV) independently subject to copyright protection. This was not a case in which the bars of Kookaburra that appear in Down Under could be said to have no originality and thus fall outside copyright protection as referred to in IceTv (at [37] citing Ladbroke (Football) Ltd at 293, itself a case involving a compilation in the form of a football betting coupon).
207 Against these conclusions it is apparent that the trial judge's alleged failure to consider the aural perception of the bars from Kookaburra as they appear in Down Under cannot be sustained. It follows that this aspect of the case of the EMI parties and Mr Hay comes down to the propositions that the trial judge applied the wrong test to the issue of aural perception, being that of a sensitised listener inappropriately assisted by expert evidence; and that further, had he not applied this incorrect test, the almost determinative significance of the fact that no one noticed the similarity for some 20 years would have been apparent.
208 The phrase "ordinary reasonably experienced listener" was used in Francis Day v Bron at 596 in a conclusion that the degree of similarity was sufficient for such a listener to think that one might have come from the other. In G Ricordi v Clayton, to which the EMI parties and Mr Hay also referred in this context, there was evidence from one expert that the resemblance of the part alleged to have been taken from the copyright work was very strong while another expert said the resemblance was of the very slightest character. The present case, it must be recalled, is different. All of the expert witnesses recognised that the flute riff in Down Under directly and unmistakably quoted, borrowed or took two bars from Kookaburra. This is consistent with the fact that once the panel members of Spicks and Specks had been directed to the relevant part of the flute riff all ultimately said that they could recognise the bars taken from Kookaburra. However, as the trial judge recognised, the panel members are musical experts and not the ordinary reasonably experienced listener (at [206]).
209 It is clear from the trial judge's reasons that he was aware of the approach of the ordinary reasonably experienced listener to objective similarity. He referred to that phrase as the relevant test at [172] and [206]. At [172] the trial judge in fact said:
In any event, the test is that of the ordinary reasonably experienced listener and the comparison is not concerned with deceptive similarity as in a passing-off action: Francis Day & Hunter at 610, 623-624; Russell William Textiles at 2425.
210 Having correctly identified the relevant test, the question is whether, in referring to the "sensitised listener" and making the use of the expert evidence as he did, the trial judge in fact failed to apply the test he had identified. To answer this question the passages from the reasons on which the EMI parties and Mr Hay relied must be considered in context.
211 At [171] the trial judge accepted that there was force in the submission that he had become sensitised to the similarities between the melodies so as to be able to hear objective similarity between them. The trial judge said he did not think this overcame the force of the expert evidence and the conclusion which seems to follow inevitably from the frank admissions by Mr Hay. Both of the latter findings are said to involve error and are also addressed below.
212 At [207], after referring to the test of the ordinary reasonably experienced listener at [206], the trial judge said that Spicks and Specks showed that "there are difficulties in the recognition of the work, but a sensitised listener can detect the aural resemblance between the bars of Kookaburra and the flute riff of Down Under".
213 It is apparent from [171] that the trial judge could hear the objective similarity between Kookaburra and part of the flute riff in Down Under. By "sensitised listener" the trial judge could not have meant expert listener. It is clear from the context that he meant an ordinary reasonably experienced listener who had heard the relevant parts of the works more than once and, perhaps, repeatedly. As Larrikin submitted, however, the task the trial judge was addressing was objective similarity. There is no principle that the ordinary reasonably experienced listener may not hear a work or part of it more than once. Nor do the cases suggest that the trial judge was not entitled to have regard to the expert evidence when determining objective similarity. Moreover, and as noted, all of the expert evidence was to the same effect at least insofar as it established that the flute riff in Down Under directly borrowed bars from Kookaburra. The fact that Mr Armiger described these borrowings as "shared phrases" confirms the taking of bars from Kookaburra.
214 It is also difficult to accept the contention that the trial judge erred in relying on Mr Hay's evidence. At [161] the trial judge referred to Mr Hay's evidence that he sang the relevant bars of Kookaburra when performing Down Under at a number of concerts since 2002. At [168] the trial judge referred to Mr Hay's agreement that the fourth bar of Down Under is a direct reference to Kookaburra and the fourth bar of Example D and the second and fourth bars of Example E are unmistakably the melody of Kookaburra. It may be accepted that Mr Hay, as a musician, has a skilled ear and is not himself the ordinary reasonably experienced listener. But, as noted, if the trial judge was entitled to have regard to expert evidence on the question of objective similarity (as he was) then he was also entitled to have regard to Mr Hay's evidence.
215 Nothing in the trial judge's reasons suggests that he somehow mistakenly believed that the lyrics of Kookaburra had any significance to the copyright work in question - the description at [121] of Dr Ford's evidence indicates to the contrary. The trial judge referred to Dr Ford's evidence about the opening two bars being the signature of that work and continued:
Although he agreed that it is a signature because of the lyrics, he said it is also the first thing you hear so it is the part of the melody that "sticks in your head".
216 There cannot be much doubt that, in referring to the signature of Kookaburra thereafter, the trial judge was intending to refer to that part of Dr Ford's evidence he found relevant - namely, the first two bars are the melody that "sticks in your head".
217 Once the trial judge's sensitivity to the irrelevance of the lyrics themselves is recognised it becomes apparent that he did not find Mr Hay's singing of the Kookaburra lyrics important by reason of the lyrics. Rather, it must be inferred that the trial judge considered it important that the melody conveyed by the singing of the lyrics of Kookaburra (as the Spicks and Specks panel member put it - the "dah dah dah…") fitted over the top of the flute riff from Down Under. The fact that Mr Hay's performances are not the infringement sued upon, in this context, is immaterial. As the trial judge put it, the capacity to sing the Kookaburra melody directly over the relevant parts of the Down Under flute riff "graphically" illustrates that the fourth bar of Example D and the second and fourth bars of Example E are unmistakably the melody of Kookaburra. The trial judge was entitled to use that evidence as he did.
218 Analysed in this way it is apparent that none of these aspects of the challenge to the trial judge's decision can be sustained as an error of principle. The trial judge could detect the similarity between the two pieces. He identified and applied the test of the ordinary reasonably experienced listener to objective similarity. He accepted that he may have become a sensitised listener. He made use of the expert evidence to support the finding of objective similarity. In all these respects the trial judge's reasoning was orthodox.
219 While dealing with the evidentiary issues it is convenient to consider the alleged error in respect of Mr Ham's evidence. In short, there was no error. A part of Mr Ham's affidavit was tendered but he was not called to give evidence. The affidavit said that Mr Ham had heard Kookaburra as a child, had wanted to inject an Australian flavour into the flute riff and did so aiming for an Australian clichÉ. As Mr Ham was not called, the trial judge correctly said that he could infer his evidence would not have assisted the EMI parties and Mr Hay. In this context the trial judge was entitled to infer that Mr Ham deliberately reproduced a part of Kookaburra, an iconic Australian melody, for the purpose and with the intention of injecting Australian flavour into the flute riff. It is not to the point that Mr Ham may not have labelled the work he was borrowing as "Kookaburra". It was open to the trial judge to infer from Mr Ham's affidavit and the failure to call him that Mr Ham knew he was reproducing a specific iconic Australian melody.
220 As the EMI parties and Mr Hay submitted, it may be accepted that in a case where what has been taken is so slight or so different in the alleged infringing work from the copyright work that it cannot be recognised at all, a conclusion that there has been no reproduction of a substantial part of the copyright work should follow. So much is clear from the observations to that effect in Hawkes and Son (London), Limited v Paramount Film Service, Limited [1934] 1 Ch 593 at 604. In the result in that case, however, it was found that the part taken "would be recognised by any person" and was held to be substantial. The present case was not one in which the part taken from the copyright work (Kookaburra) could not be recognised at all in the infringing work (Down Under). The experts all recognised it as an unmistakable direct borrowing (unlike, for example, the debate on that issue in G Ricordi v Clayton). The trial judge recognised the shared melody. In fact, he described the melody as "the same" despite the separation of the notes from Kookaburra in the flute riff (at [201]).
221 As to animus furandi, it must again be said that the references in IceTV on which the EMI parties and Mr Hay relied (at [55] and [171]) are in the context of a compilation case. In such a case, where fine questions might arise in distinguishing between the protection of information and the form in which information is conveyed or expressed, the intention of the alleged infringer may take on considerable significance. Despite this, French CJ, Crennan and Kiefel JJ described such an inquiry, given their other conclusions, as unnecessary at [55]. It is difficult to accept that such an inquiry is necessary in every case given, for example, that subconscious copying may infringe copyright. Provided the test of causal connection is satisfied, an intention to take advantage of the labour of another is not required in order for an action for copyright infringement to be sustained. No doubt, if such an intention exists, causal connection will be proved and other findings may be more readily made against the alleged infringer. But it cannot be said that the trial judge erred by not making a positive finding about animus furandi one way or another.
222 It must also be concluded that the other tests propounded by the EMI parties and Mr Hay involve taking statements from decisions out of the context in which they appear and inappropriately elevating them to a level of principle applicable in all cases.
223 One such test was whether there had been a "manifest wholesale adoption of the individual work which Ms Sinclair had bestowed upon Kookaburra and which had given to it its distinct characteristics and individuality". This statement was said to derive from the reasons of Isaacs J in Sands & McDougall Proprietary Limited v Robinson (1917) 23 CLR 49 at 53. However, it is clear from the context of this statement that his Honour was not expressing a test or principle. He was making a factual finding that the differences between the two maps in question did not change the fact that the infringing map disclosed a manifest wholesale adoption of the individual work of the copyright map which gave it its distinct characteristics and individuality.
224 Another test was whether Larrikin had "clearly established… that, looking at Kookaburra as a whole, there had been a substantial reproduction in the particular use [by the EMI parties and Mr Hay] in the 1979 and 1981 recordings of two bars of Kookaburra". This is derived from IceTV at [75] and [169]. However, [75] is a reference to Leslie v Young & Sons at 341 in which it was said that, although a compilation or abstract involving independent labour may be protected by copyright, "when you come to such a subject matter as that with which we are dealing, it ought to be clearly established that, looking at these tables as a whole, there has been a substantial appropriation by the one party of the independent labour of the other, before any proceeding on the ground of copyright can be justified". The copyright work being dealt with in Leslie v Young & Sons was railway timetables. The House of Lords explained the difference between a mere order of trains issued by a railway company, which could not be the subject of copyright, and an abridgment of rail times such as in connection with tours in a particular locality, which could be the subject of such protection. This reflects the basic proposition that copyright does not protect facts or information or ideas but the form of their expression to the world (Ice TV at [26] and [28]). This proposition underpins the particular approach to compilations evident in cases dealing with works of that nature. In [169] Gummow, Heydon and Hayne JJ also referred to Leslie v Young & Sons in the context of emphasising the theme of that decision that "in a case such as the present" it ought to be "clearly established… that, looking at the Weekly Schedule as a whole, there has been a substantial reproduction in the particular use by IceTV".
225 In other words, the decisions on which the EMI parties and Mr Hay relied to support their tests either turned on their facts or involved compilations in which the courts in question emphasised the nature of the works said to be protected by copyright as compilations. In the context of copyright, where the expression of ideas and information is protected, but not the ideas or information themselves, the approach which the courts adopted to ascertain whether there had been a substantial reproduction is explicable. The emphasis on context in the decisions shows that the proposed tests are not well-founded in the authorities. Kookaburra is not a compilation. It is a musical work the creation of which, on the evidence before the trial judge, involved the "tricky" and "amusing" business of ensuring that each phrase of the song fitted over the top of each other. Nothing about that context warrants the approach which the EMI parties and Mr Hay advocated nor, indeed, any different approach from that which the trial judge adopted based on Francis Day v Bron (at [20], [33], [44]-[49]), SW Hart (at [32]-[38]) and IceTV (at [39]-[41], [55]-[59]), as well as Austin v Columbia Graphophone (at [51]) and D'Almaine v Boosey (at [52]-[53]).
226 With these conclusions in mind it is apparent that the matters of difference on which the EMI parties and Mr Hay relied are insufficient to support a finding that the trial judge erred in principle or was plainly wrong in concluding that the flute riff of Down Under reproduced a substantial part of Kookaburra. As Larrikin submitted, the decisions on which the EMI parties and Mr Hay relied to support the materiality of these differences do not suggest that they represent the minimum criteria for a finding of reproduction of a substantial part of a copyright work. Accordingly, while it may be accepted that there is not a "ready" aural perception of the bars of Kookaburra in the flute riff of Down Under, the bars are there and, as the trial judge found, can be heard once attention is directed to them. In terms of objective similarity, the bars are reproduced albeit in a different key and embedded in a different structure. It may also be accepted the Kookaburra and Down Under are different genres, but that does not overcome the fact that the bars of Kookaburra have been borrowed for the flute riff. Similarly, although the works are of a different structure, the bars of Kookaburra are nevertheless present in the flute riff and recognisable as such. Down Under is a much longer work so that it may be said that only 5 bars out of Down Under's total of 93 bars involve Kookaburra. But, as noted, those bars are objectively similar and the issue of substantiality is to be determined by reference to Kookaburra, not Down Under. The bars from Kookaburra are interspersed with the basic hook of Down Under but they can nevertheless be recognised as Kookaburra. The key is different but the effect of the evidence before the trial judge was that it is relative pitch that makes a song recognisable and the different key was like "shining a different light" on the bars from Kookaburra as they appear in the flute riff in Down Under. The same may be said of Down Under's distinctive reggae sound. The status of Kookaburra as a round has been discussed above. Characterising the borrowing as a tribute does not alter the fact of the borrowing.
227 In a case such as the present, where it is often said that questions of fact and degree are involved, an appellate court should not interfere with a trial judge's decision unless persuaded it is based on erroneous principle or plainly wrong. For the reasons given above, neither criterion for appellate intervention is satisfied in respect of the trial judge's finding that the 1979 and 1981 recordings of Down Under reproduce a substantial part of Kookaburra and thus infringe the copyright in Kookaburra. It follows that the appeal must be dismissed and the notice of contention is immaterial.