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[1988] FCA 202
Federal Court of Australia
1988-04-29
Einfeld JJ
Original judgment source is linked above.
this matter, the trial judge equally identified the correct
principle. Although he listed the similarities and Gisimilarities it is clear that he decided the issue of similarity on a qualitative basis rather than a quantitative
We are further confirmed in our view that the trial judge's findings on the question of similarity ought not to be
The evidence as to similarity here is such that either of the two following conclusions may be safely reached. They are either that enough has been shown by Mr Mancuso and Mr Caruso to support a finding that the alleged infringing work is not similar to the whole or a substantial part of the copyright work, or, alternatively, that all that was "copied" from the copyright
With respect to the first alternative, we rely primarily upon the findings of the trial judge, with whom we agree. on the second alternative we place considerable reliance upon' the "broken 2" roofline, held out by the appellants as a matter of a distinctive nature in the copyright design. The design of the house of Mr. & Mrs. Mancuso did not incorporate this "broken 2" roofline, but rather had only one L-shaped roof section, the shorter stroke of which is over the stairwell of the house. The substantial part of the design of the appellants is thereby not, in our opinion, reproduced with the requisite similarity. The trial judge was in our view correct in finding that the alleged
infringing work adopted no more than the concept and idea behind
the copyright work. Such an adoption does not amount to a breach
of copyright. It should be added that, where as here the copyright material is of a relatively simple rather commonplace kind, the task of establishing infringement is inherently more difficult. As Mr. Ricketson in his work "The Law of Intellectual Property" says at p.170: "If the part taken represents the application of a high degree of skill and labour on the part of the author,
it may be regarded as substantial although comparatively slight in quantitative terms."
As an example of the application of that principle, in addition to the cases cited by the author, see Kenrick and Co. v Lawrence
the 2Q preceding pages are a true copy of the Reasons for Judgment of The Court.
Counsel for the Appellants: Mr. G.L. Davies 9.C. with Mr. P.D. McMurdo
Whitford J. in L.B. (Plastics) Ltd v Swish Products Ltd [1979] RPC 551 at p.569 made similar remarks. The "original" character which would otherwise subsist in Envoy Series 2 is not therefore precluded from so subsisting nor is it "forfeited" by reason of its genesis as an adaption of previous original designs. (See also Ogden Industries Pty. Ltd. and Ors Kis (Australia) Pty. Ltd. [1982] 2 N.S.W.L.R. 28; Warwick Film Productions Ltd. v