[1991] FCA 617; 105 ALR 623

[1991] FCA 617; (1991) 33 FCR 111

Copyright and Designs - whether copyright subsists in a drawing of a single letter - whether copyright can subsist in works protected under the Trade Marks Act 1955 - whether there is copyright in a computer printout of a written work, where the original was created on a floppy disk - whether s.77 of the Copyright Act 1968 can apply to photographs in a book - whether importation without licence.

Judgments and Orders - case part-heard - whether interlocutory injunction can be given where a defence yet to be considered.

Copyright Act 1968, ss.22, 31, 32, 36, 37, 77

Solicitors for the Respondent: Vandenberg Reid Pappas and MacDonald

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The applicants claim injunctions, damages and other relief on the ground of breach of copyright and in respect of misleading or deceptive conduct. At the trial, the latter cause of action was abandoned and the applicants relied upon breach of copyright only. The respondent pleaded various defences to the allegations of breach of copyright, one of which was of an unusual kind: the defence set up that in relevant respects the second applicant breached the exclusive dealing provisions of the Trade Practices Act 1974 (s.47). It was alleged that the first applicant was involved in the second applicant's contraventions. A cross-claim was included based upon the allegation of exclusive dealing.

2. Gummow J. made an order on 22 May 1990 whose effect was to exclude from the hearing before me the exclusive dealing issue and that was done; the parties told me that the exclusive dealing issue was not nearly ready to be tried.

3. At the conclusion of the hearing, Mr Yates for the applicants submitted that if they succeeded on the issues tried, then the Court should consider granting an interlocutory injunction. Mr Bannon for the respondent opposed that, on the ground that the Court could not grant an interlocutory injunction without paying some attention to the strength of the Trade Practices Act defence, which had not been litigated. It appears to me that Mr Bannon's submission on that point must be accepted. The trial can lead only to findings, not the granting of relief.

4. The first applicant is a Japanese company which makes musical equipment such as electronic synthesisers and the second applicant is the first applicant's Australian distributor. The respondent is an Australian company which sells musical equipment by mail order under the name "Pro Audio". It solicits orders by sending out catalogues, the content of which the applicants say includes copyright material belonging to the first applicant. That material consists of two logos which were called in the evidence the "R device" and the "B device" and are respectively as follows:

5. In addition, the applicants say that the respondent has reproduced photographs of the first applicant's equipment which, it is common ground, were copied from photographs included in material distributed by the applicants.

6. Apart from the two devices (R and B) and the photographs, the applicants set up copyright in manuals and associated documents, the use of which is necessary for those who purchase the applicants' musical equipment. These items will simply be called "the manuals" in these reasons; they are more precisely identified in paragraphs 5(d) and 5(e)(iv), (vi), (vii) and (viii) of the statement of claim.

7. The applicants' case sets up direct infringement under s.36 of the Copyright Act 1968 ("the Act") and also infringement by importation under s.37 of the Act. It is the applicants' case that the respondent has, without the first applicant's licence, imported manuals into Australia to distribute them for the purpose of trade in circumstances falling within s.37, which reads, in part, as follows:

"The copyright in a literary, dramatic, musical or artistic work is

infringed by a person who, without the licence of the owner of the

copyright, imports an article into Australia for the purpose of:

...

(b) distributing the article:

(i) for the purpose of trade; or

...

where, to his knowledge, the making of the article would, if the

article had been made in Australia by the importer, have constituted

an infringement of the copyright".

8. The principal dispute of fact related to the s.37 claim and, in particular, as to whether the respondent had imported manuals and whether it did so with or without the licence of the first applicant. The other questions argued were mainly matters of law.

9. The respondent did not admit that copyright subsisted in the works the subject of the proceedings but, except in one respect, did not put ownership in issue: the respondent put the applicants to proof of ownership of copyright in the R device. It was established that the author, one Tomita, assigned the copyright in the device by a deed dated 22 February 1991, but the respondent contended that the assignment was ineffective; it was argued that on the date of the filing of the application in this Court, 9 September 1988, the first applicant had no title to the copyright in the R device.

10. There are, I think, two answers to that contention. The first is that the first applicant may obtain declaratory relief and injunctive relief even if it had no cause of action prior to the date of assignment; the date of accrual of the cause of action can only affect the claim for damages. The second is that it appears that the first applicant was, at the time of the execution of the assignment on 22 February 1991, the equitable owner of the property assigned and that the assignment was for value. As the equitable owner, the first applicant could have sued before the assignment, if it joined the legal owner: Performing Right Society Limited v London Theatre of Varieties Limited (1924) AC 1. The applicant now being itself the legal owner, that obstacle is gone.

11. Mr Bannon contended that there could be no copyright in the two devices depicted above because they were, in essence, merely depictions of single letters.

12. He relied principally upon Exxon Corporation v Exxon Insurance Consultants International Ltd. (1982) 1 Ch 119, in which it was held that no copyright subsisted in the word "Exxon" as an original literary work. No question there arose as to the word's being an original artistic work: under s.32(1), the work must be literary, dramatic, musical or artistic, for copyright to subsist. The definition of "artistic work" in s.10 includes in paragraph (a) a "drawing ... whether the work is of artistic quality or not" and in paragraph (c):

"a work of artistic craftsmanship to which neither of the last two

preceding paragraphs applies".

It is not easy to see that the Exxon case gives the respondent any support.

13. In Millar and Lang, Limited v Polak (1908) 1 Ch 433, design s on Christmas cards including "the capital letters of the alphabet, in a distinctive form within an ornamental oval or circular scroll" were held to be drawings capable of registration under the Fine Arts Copyright Act 1862. It was there argued that the drawings were not "drawings in the sense intended by the Act of 1862" because although "novel and ingenious ... they are not works of art" (439). That contention was rejected.

14. In British Northrop Ltd. v Texteam Blackburn Ltd. (1974) 91 RPC 57 at pp 68 and 69, Megarry J. had to consider whether some rather simple drawings could be the subject of copyright. The Judge said of the drawings:

"some of them are indeed simple. They include ... a block of

leather, a washer and a collar. They are all carefully drawn to

scale, with precise dimensions, and I cannot extract from the

statute any indication that these drawings should not be able to

qualify for copyright. If simplicity were a disqualification, at

some point there would come enough complexity to qualify. It is not

that I am unable to see exactly where the Act draws the line: it is

that I cannot see that there is any intention to draw any line at all".

15. On the other hand, in the same judgment, Megarry J. made the point that a single straight line "drawn with the aid of a ruler would not seem to me a very promising subject for copyright" (68).

16. It is not easy to see why an allegedly copyright drawing of a washer, presumably being two concentric circles, does not require consideration on the score of simplicity. It may be that the view of Megarry J. of the meaning of "drawing" involves an approach which is difficult to reconcile with that taken in the English Court of Appeal with respect to the meaning of "literary work": see Exxon at p 144 where approval was given to the statement:

"... a literary work is intended to afford either information and

instruction, or pleasure, in the form of literary enjoyment".

17. A work may be so simple that it can afford none of these, except trivially. It seems clear that a mere random collection of letters of the alphabet could not be copyright and presumably a mere random scribble could not be either, but the devices with which I am concerned are by no means random and were plainly drawn with care, to obtain an effect. It is true that they are relatively simple and their simplicity will produce the result that only an exact or fairly exact copy will infringe; but that is not a problem for the applicants here.

18. I therefore reject the contention that the applicants fail as to the two devices drawn above on the ground that each is merely a single letter of the alphabet.

19. Each of the devices is registered under the Trade Marks Act 1955. Although the matter was but lightly touched on in argument, it appears to me necessary to deal with the question whether copyright can subsist in the two devices, since each has protection under that Act. In Catnic Components Limited v Hill and Smith Limited (1978) FSR 405, Whitford J. considered cognate questions: whether patent and copyright protection can co-exist:

"In my view, by applying for a patent and accepting the statutory

obligation to describe and if necessary illustrate embodiments of

his invention, a patentee necessarily makes an election accepting

that, in return for a potential monopoly, upon publication, the

material disclosed by him in the specification must be deemed to be

open to be used by the public, subject only to such monopoly rights

as he may acquire on his application for the patent and during the

period for which his monopoly remains in force, whatever be the

reason for the determination of the monopoly rights" (427-428).

The reason given by Whitford J. cannot be directly applied to co-existence of trademark and copyright protection.

20. The problem was briefly referred to in the judgment at first instance in Exxon, the copyright claim mentioned above, and it may be that Graham J. intended to suggest agreement with the following contention:

"Mr Mummery also contended that, on a fair reading of the Act, it

cannot really have been intended to give further rights of property

in words or names which would naturally and properly qualify for

excellent protection as registered trade marks or as the subject of

passing-off actions" (1982 Ch at 130).

21. In Re Karo Step (1977) 94 RPC 255, the artistic part of a trademark was found to have copyright, but there the trademark was registered by a person who did not own the copyright. In Stephenson, Blake and Co. v Grant, Legros and Co. Ltd. (1916) 33 RPC 406 at 414, it was held that a drawing of a letter could be both the subject matter of copyright and protected under the Patents and Designs Act 1907. When the case went on appeal, the order was discharged "without prejudice to any question so that it cannot be used as a precedent": (1917) 34 RPC 195. But a broader view was taken in the House of Lords in a case concerning confidential information: Regina v Licensing Authority Established under Medicines Act 1968, Ex Parte Smith Kline and French Laboratories Ltd. (No. 2) (1989) 2 WLR 378. The passage I shall quote has to do with the relationship between protection in equity of confidential information, on the one hand, and patent law, on the other. Lord Templeman, with whom the other Judges agreed, said:

"The appellants' submissions are, in essence, based on the

proposition that if a product is worth copying, the law should

protect the product against being copied. My Lords, that is not the

law. In British Leyland Motor Corporation Ltd. v Armstrong Patents

Co. Ltd. (1986) AC 577, this House declined to allow the law of

copyright to be exploited and rejected the argument that a motor car

manufacturer was entitled to a perpetual monopoly in spare parts and

could prevent the copying of spare parts which were no longer

protected by a patent. In In re Coca-Cola Co. (1986) 1 WLR 695,

this House declined to allow trade mark law to be exploited and

rejected the argument that the manufacturer of a beverage sold under

a trade name had established a perpetual monopoly in and could

prevent the copying of the shape of a bottle which was no longer

protected by the Registered Designs Act 1949. In Interlego A.G. v

Tyco Industries Inc. [1988] UKPC 3; (1988) 3 WLR 678, the Privy Council declined to

allow the law of copyright in Hong Kong to be exploited and rejected

the argument that a manufacturer of a toy was entitled to a

perpetual monopoly in the toy and could prevent the copying of the

shape of the toy which was no longer protected by the Registered

Designs Act 1949. In Reg. v Comptroller-General of Patents, Designs

and Trade Marks, Ex parte Gist-Brocades N.V. (1986) 1 WLR 51 and in

Allen and Hanburys Ltd. v Generics (U.K.) Ltd. (1988) 2 All ER

454, proprietors of patented drugs sought to obstruct and delay the

settlement of terms of licences of right by the comptroller and met

with some success until the European Court of Justice ruled that the

comptroller had no power to prohibit imports from Community

countries" (410, 411).

22. The underlying notion appears to be that a piece of intellectual property may be deprived of protection in one category on the ground that it is more appropriately dealt with under another. In the absence of any such principle, anomalous results may ensue. For example, if the applicants' trademark registrations expired, under s.55 of the Trade Marks Act 1955, by effluxion of time, or were removed from the register on the ground of non-user under s.23, it would seem odd that the applicants could still protect the marks as drawings under the Copyright Act.

23. Counsel referred to R. and A. Bailey and Co. Ltd. v Boccaccio Pty. Ltd. (1986) 4 NSW LR 701, in which the Judge rejected the proposition that "where an artistic work is created for the purpose of use of a trade mark there is an implied surrender of any copyright protection inconsistent with liberties afforded under trade mark law" (712). That case preceded Smith Kline and French (above).

24. The anomalous and inconvenient consequences which may ensue from allowing trademarks whose protection under the Trade Marks Act has come to an end to be the foundation of copyright suits are such as to make one suspect that the legislature must be taken to have intended some implied limitation. But the question whether an appropriate limitation should be read in depends not so much upon one's view of intellectual property law, but upon the general question of the courts' freedom to make implications in statutes. Examples can be found in which much has been read into statutes under the rubric of construction. In my view, the problem of the relationship between trademark and copyright protection is one of some practical complexity and I prefer to follow what appears to be the orthodox assumption, that the two may co-exist: see, for example, Anheuser-Busch Incorporated v Castlebrae Pty. Ltd. (Davies J., unreported, 25 October 1991).

25. That view appears to be consistent with the weight of authority in the United States. The decision of the Supreme Court in Mazer v Stein [1954] USSC 36; 347 US 201 (1954) is authority for the view that a work may receive either trademark or copyright protection; see also Vacheron and Constantin-le Coultre Watches, Inc. v Beurus Watch Company, Inc. [1958] USCA2 545; 260 F 2d 637 (copyright and patent as alternative protection) and Barton Candy Corporation v Tell Chocolate Novelties Corp. 178 F Supp 577 (1959) where copyright protection was allowed when the patent had expired. The specific point made by Whitford J. in the Catnic case is consistent with the decision in Korzybski v Underwood and Underwood, Inc. 36 F 2d 727 (1929), but that was not followed in Zachary v Western Publishing Company, Inc. App., 143 Cal Rptr 34.

26. The manuals were developed on word processors and the respondent advanced the contention that this creates an insuperable difficulty. The theory is that the original work was the disk on which, presumably, electric charges recorded that which the operator of the word processor had done; there is, it is said, no copyright in the printed text of the manuals. The applicants' particulars allege that the original work is contained on a floppy disk and, as will appear, I am of opinion that the allegation is correct.

27. The problem of identifying the original work is not confined to material produced by a word processor. An author may first produce his work in the form of a shorthand script, or by dictating onto a magnetic tape. A sculptor may first draw the design on paper before rendering it in stone or having others do so.

28. To take the first example, one would think there must be copyright in the shorthand script, so that a person's turning it into text without the author's permission would be unlawful. But if there is a copyright in the shorthand script which is then turned into text with the author's authority, is the text an original work? If it is not, then no copyright can subsist in it: s.32(1).

"A reference in this Act to the time when, or the period during

which, a literary, dramatic, musical or artistic work was made shall

be read as a reference to the time when, or the period during

which, as the case may be, the work was first reduced to writing or

to some other material form".

The relevance of identifying the time when a work was "made" appears to be principally for the purpose of determining the time at which the author must have been a qualified person: see s.32(1)(a) and (b). But presumably a work which has not been "made" cannot be copyright.

30. Under s.22(1) each manual was first reduced to a material form when it was reduced to a "form (whether visible or not) of storage from which the work ... or a substantial part of the work ... can be reproduced"; see the definition of "material form" inserted in 1984 in s.10 and referred to further below. The question is then whether, the work having been made when the content of the manual was stored on a disk in the word processor, the printout reproducing the same information in another form can itself be "original".

31. In Express Newspapers Plc v Liverpool Daily Post and Echo Plc (1985) FSR 306, the output of a computer was implicitly treated as original. There, the point taken was that the computer's output was not a work of which a person could be said to be the author. That was rejected, the computer being, I think, rather unconvincingly compared with a pen. A computer reasons and calculates, tasks which are beyond a pen. A special computer program produced, in that case, a large number of patterns and sequences. If the author of such a program is the author of the printout which use of the program produces, then even more obviously the author of the letters and symbols typed onto a word processor is the author of the printout.

32. Since it is unlikely that neither the embodiment of the author's ideas in patterns of electrical charges on the disk, nor the word processor's printout, has copyright, the question appears to be whether one or both is copyright - and if one, which? Assuming against the applicants that, before being printed out, the whole content of each manual was recorded on a disk in the word processor, then in my opinion the content of the disk was copyright. This view of the matter probably cannot be reconciled with the opinions of Gibbs C.J. and Brennan J. expressed in Computer Edge Pty. Ltd. v Apple Computer, Inc. [1986] HCA 19; (1986) 161 CLR 171 as to the object code there considered; their Honours thought the form in which the information was stored was inconsistent with its being a literary work: 184.4, 203.2. I prefer, with respect, the views of Mason J. (as his Honour then was) and Wilson J. on that point: 193, 194; further, the law was changed by the insertion of the definition of "material form" by Act No. 43 of 1984, which amendment was made too late to affect the result of the Apple Computer case. That definition is as follows:

"'material form', in relation to a work or an adaptation of a work,

includes any form (whether visible or not) of storage from which the

work or adaptation, or a substantial part of the work or adaptation,

can be reproduced"

33. The result is that, on the assumption I have mentioned - that the work was first stored on the disk in toto before being printed out - it was "made" at that stage. That is so because copyright does not subsist until the work is made within the meaning of s.32 and that means, so far as presently relevant, when the work was first reduced to a material form: s.22(1). When stored in the computer, the work was reduced to a material form.

34. This is not to say that there is any difficulty about the statement of claim. It claims copyright in the manuals, but that does not mean copyright in any particular embodiment of them. The word "manuals" in the pleading is perfectly capable of including their expression on the disk.

35. The next question is whether a person who copies, not from the disk, but from a printed manual, is infringing the copyright of the owner. A direct infringement is achieved by doing an act comprised in the copyright: s.36(1), and that includes, in the case of a literary work, "to reproduce the work in a material form": s.31(1)(a)(i). The question is whether one reproduces the content of the disk by copying the printout.

36. Reading s.31(1)(a)(i) with the definition of "material form", one gets the result that copyright in the content of the disk includes the right to reproduce the content of the disk in any form of storage from which the work can be reproduced. Except for the awkward word "storage", the expression seems to fit the facts of this case. Even if one regards the expression "the work" as to be identified with the particular embodiment of it on the disk - rather than the words or other symbols so embodied - no doubt one can, by typing the verbal and symbolic content back onto an appropriate word processor, reproduce the content of the disk. Further, I think that to read the expression "form ... of storage" as excluding ordinary language would be too narrow. The intention of the definition appears to be to focus attention upon the content of that which is copyright, rather than the particular form in which it is embodied. A mere change in form (for example from digital to alphabetic expression) without any change in content gives a reproduction, not an original work.

37. It is therefore my view that the first applicant has copyright in each of the manuals and that such copyright came into existence when the content of the manual first subsisted on a disk in the word processor. Copying the printout or (of course) any copy of the printout is a breach of the copyright I have identified. Such a breach is adequately pleaded and the respondent's point fails.

38. I should add that the view I have arrived at amounts to treating the content of the word processor disk as a "literary work", although it does not fall within the statutory definition of "computer program". I would not, for this purpose, distinguish that content from any other coded information, able to be transformed into ordinary language and other symbols.

39. Mr Bannon relied upon s.77 of the Act in the form which it had prior to the Copyright Act Amendment Act 1989, which inserted a new s.77, coming into operation on 1 October 1990. Mr Bannon's point depends on the proposition that the old s.77, despite its repeal, still has effect insofar as it provides defences to action for infringement and that proposition was not, I think, contested by Mr Yates. The point is further referred to below.

40. The contention is that the devices in the photographs copied are, if artistic works, works in respect of which a "corresponding design" has been "applied industrially by, or with the licence of, the owner of the copyright in the work": see s.77(1)(a) and (b) of the Act in its old form. It is common ground that the two devices, R and B, were applied to the first applicant's equipment sufficiently often for the section to apply. If it does apply, then it follows from s.77(2), which I will not set out, that no suit for infringement lies. It is my opinion that to the extent that the old s.77 put an end to suits for infringement of copyright, its repeal does not revive that right: see s.8(a) of the Acts Interpretation Act 1901.

41. I can see no answer to the defence so far as it relates to devices. Mr Yates argued, as I understood the argument, that there could not be a "corresponding design" within the meaning of s.77(1)(b) because there was no pre-existing artistic work. I confess to some difficulty in following the contention, which was not expressly applied, during the argument, to the devices. In my view, all the conditions of s.77 are fulfilled: namely, copyright subsists in the devices, a corresponding design has been applied industrially by the applicant (the owner of the copyright), articles to which that design has been applied have been sold in Australia and at that time they were not articles in respect of which the corresponding design had been registered under the Designs Act 1906. No reason was suggested why the devices could not have been registered as designs and, in particular, they were not excluded from registrability by reg.11 of the Designs Regulations.

42. The second argument Mr Yates advanced with respect to s.77 was based, in part, upon the absurdity of depriving of copyright protection a book containing photographs. This appears to me to be a real difficulty in Mr Bannon's case, as to photographs. If he is right, then photographs capable of registration as designs (see Saunders v Wiel (1893) 10 RPC 29) could lose copyright protection simply by being printed in books. Mr Yates suggested that this result was odd and that if the contention was accepted, it would destroy copyright in many artistic works.

43. Mr Yates contended, as to the text of s.77, that the design consisting in the photographs was not "applied" to the publication in which it appeared - e.g. a manual. He said it was merely a reproduction.

44. Unfortunately, that argument appears not to be open because reg.17, made under the Copyright Act and setting out the circumstances in which a design is deemed to have been applied industrially for the purpose of s.77, deems a design to have been applied if:

"(a) the design is applied to the article by a process (whether a

process of printing, embossing or otherwise); or

(b) the design is reproduced on or in the article in the course of

the production of the article".

45. In my opinion, however, s.77 does not protect the respondent in respect of the copyright in the photographs. Reading s.77 with reg.17, it sufficiently appears, I think, that it was not intended to destroy copyright in artistic works simply because they were printed in books; that intention is inconsistent with the whole purpose of the Copyright Act. It is true that reading reg.17 without regard to s.77, Mr Bannon's argument concerning the photographs appears to have some strength. But the regulation must be read down so as to avoid a result which is so repugnant to the purpose of the statute under which it was made.

46. It may be that the logical end to this line of argument is to say that reg.17 is invalid insofar as it purports to have the result of destroying copyright in artistic works printed in books. Section 77(5) says:

"The regulations may make provision for determining the

circumstances in which a design is, for the purposes of this

section, to be deemed to be applied industrially".

Although the printing and binding of books is an industry, in the context the word "industrially" cannot have been intended to have a sufficiently wide meaning to put an end to protection of copyright in drawings and the like printed in books.

47. It is my conclusion then that the s.77 defence succeeds as to the devices, but not as to the photographs.

48. I have quoted above the relevant parts of s.37 on which the applicants rely. The applicants must show that the respondent, without the licence of the first applicant, imported manuals into Australia for the purpose of distributing them for the purpose of trade; there is no issue as to the balance of s.37. The questions are two: first, whether articles were imported into Australia and, secondly, whether that occurred without the first applicant's licence.

49. So far in these reasons, I have used the expression "the manuals" to include the documents mentioned in paragraph 5(d) of the statement of claim, as well as those referred to in paragraph 5(e) of the statement of claim. It is necessary to distinguish between the two sub-paragraphs for present purposes; the works mentioned in paragraph 5(d) are called in the pleading the "D-50 booklets" and I shall use that expression and call the other documents the "paragraph 5(e) manuals".

50. It is common ground that the D-50 booklets were imported, but there is a dispute about the importation of the paragraph 5(e) manuals. The respondent was interrogated about importation and answered that he had imported the paragraph 5(e) manuals and said, in effect, that they had been obtained from Haven Green Pty. Limited of Hong Kong. But by a further affidavit, Mr Gambale, who had been responsible for the original answers, swore, in effect, that none of the paragraph 5(e) manuals were obtained from overseas and identified the Australian sources from which they were obtained.

51. Mr Gambale was cross-examined about this and adhered to his story that the answer to interrogatories was a mistake. He was a fairly impressive witness, but I find myself in a state of uncertainty as to which version of the facts is correct. In the end, I have been unable to be satisfied, the onus being on the applicants, that the paragraph 5(e) manuals were imported. I find that, of the works in issue, only the D-50 booklets, identified in paragraph 5(d) of the statement of claim, were imported into Australia.

52. The question remains whether the importation was without the licence of the respondent.

53. The argument advanced by Mr Bannon was to the effect that the evidence showed a connection between the supplier to the respondent and the first applicant. It was suggested that I should infer that because that connection was not elucidated in the evidence, the export of the relevant equipment was authorised by the first applicant and the permission to export it to Australia necessarily carried with it permission to export the D-50 booklets.

54. I concur in the view that the connection of the Hong Kong companies mentioned in the evidence with one another and with the first applicant remains obscure, but there seems to me to be no solid reason to reject the first applicant's case. As Mr Yates emphasised, the physical facts strongly suggest an importation without the licence of the first applicant: the equipment imported was plainly not intended for Australian use and it had to be adapted for that purpose.

55. It should be kept in mind that s.37 requires proof of an importation without the licence of the owner of the copyright. Here, it is clear that the importer (the respondent) had no licence to import from the first applicant and the question is whether or not the version of events which the first applicant puts forward, namely that it gave no relevant licence, should be treated as negated by other circumstances. In my opinion, it should not and I find that the importation of the D-50 booklets mentioned in paragraph 5(d) of the statement of claim was an infringement of the first applicant's copyright therein by reasons of the provisions of s.37 of the Act.

56. As to the statement of claim as particularised, I find the matters alleged in paragraph 5(a), (b), (c), (d) and (e)(iv), (vi), (vii), and (viii). I find that the respondent infringed the copyright as alleged in paragraph 7 of the statement of claim, with respect to the photographs and the D-50 booklets, but not with respect to the "B" device, the "R" device or the manuals.