New claims based on breach of moral rights
33 In the face of that obstacle, Dr Eliades, counsel for the prospective applicant, asserted that the prospective applicant might have claims she could bring against the original creator of the allegedly offending material for infringement of her moral rights as identified in s 189 of the Copyright Act, the remedies for which are found in s 195AZA. The relevant moral rights recognised and protected under the Copyright Act are the right of attribution of authorship, the right not to have authorship falsely attributed, and the right of integrity of authorship. The mentioning of such claims during the hearing was the first occasion on which the possibility of such a claim being made had arisen.
34 In the instanter formulation of this new claim, it was submitted that the prospective applicant might have a claim under Pt IX of the Copyright Act in respect of the alleged breaches of her moral rights, because none of the slides in respect of which complaint is made attributed her authorship. It was also submitted that she may have claims for false attribution of authorship depending upon how the slides were used by the person who originally created the offending material.
35 For the purposes of the application, it can be accepted that the prospective applicant may have claims to pursue in respect of the identified potential breaches of her moral rights in relation to the material which she claims she authored. For convenience, these claims will be referred to as the "Moral Rights Claims".
36 It was further submitted that reliance on the infringement of the prospective applicant's moral rights would effectively avoid the six year limitation period in s 134(1) of the Copyright Act on the basis that the section did not apply in relation to an infringement of moral rights under Pt IX of the Copyright Act or to an authorisation of an infringement of moral rights in respect of non-attribution of authorship under s 195AO and/or false attribution of authorship under s 195AD(a). Whilst the protection of moral rights was introduced by the Copyright Amendment (Moral Rights) Act 2000 (Cth), it appears that a lacuna exists in the Copyright Act because the limitation period in s 134(1) of that Act was not extended to such claims.
37 In their post-hearing written submissions, the prospective respondents agreed that s 134(1) did not apply to the Moral Rights Claims. However, it was submitted that, whilst that section did not impose any limitation period, a limitation period was imposed by another statute. Namely, that s 10 of the Limitation of Actions Act 1974 (Qld) (Limitation of Actions Act) applies by virtue of s 79(1) of the Judiciary Act 1903 (Cth) (Judiciary Act).
38 By reason of s 79(1) of the Judiciary Act, unless otherwise provided in the Constitution or the law of the Commonwealth, the law of Queensland applies where the Federal Court is exercising federal jurisdiction within that State. The section provides:
(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
39 It is undoubted that in any anticipated litigation to be brought by the prospective applicant, the Court would be exercising its original federal jurisdiction under s 39B(1A)(c) of the Judiciary Act, because the claims identified by the prospective applicant arise under the Copyright Act which is a Commonwealth law.
40 The operation of s 79 of the Judiciary Act was considered in Rizeq v Western Australia (2017) 262 CLR 1, 36 [90], where the majority held that its purpose is fulfilled by:
aligning s 79's description of State laws as "binding" on courts with the gap in the law governing the exercise of federal jurisdiction which exists absent other applicable Commonwealth law by reason of the absence of State legislative power to govern what a court does in the exercise of federal jurisdiction. That is how it should be read.
41 To a similar effect were the observations of Kiefel CJ (at 14 [16]):
Section 79 fills the gap created by any absence of Commonwealth laws which provide a court with powers necessary for the hearing and determination of a matter and the presence of State laws of this kind which cannot operate of their own force in federal jurisdiction. It operates by "picking up" State laws and applying them as Commonwealth law.
(Footnote omitted).
42 Here it was submitted that there exists a "gap" in the Commonwealth law in that no period of limitation is provided in relation to claims to protect infringement of the moral rights referred to in Pt IX of the Copyright Act. It is, probably, more accurate to say that the Commonwealth law makes no provision for any limitation period in respect of those claims with the consequence that there is no ousting of the State limitation of action laws to the extent to which they would otherwise apply.
43 It has, on many occasions, been stated that an infringement of intellectual property rights granted under copyright statutes constitutes tortious conduct. In National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd (2012) 201 FCR 147, 156 [28], the Full Court observed the following:
(i) Infringement of statutory copyright provisions has long been accepted as tortious. As such, infringement attracts the common law principles applied to joint tort feasors: see WEA International Inc v Hanimex Corporation Ltd (1987) 17 FCR 274 at 283; Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2009) 84 IPR 222 at [620]-[624].
44 In WEA International Inc v Hanimex Corporation Ltd (1987) 17 FCR 274, 283, Gummow J held:
It should be added that infringement of copyright statutes for long has been considered tortious, so as to make applicable the common law principles as to liability of joint tortfeasors.
45 On that basis, it was submitted that s 10 of the Limitation of Actions Act, which provides that actions in tort shall not be brought after the expiration of six years from the date on which the cause of action arose, applied to the Moral Rights Claims.
46 As an aside, it is worth observing that, though a question might arise as to whether the remedies which might be sought in relation the proposed claims are equitable in nature, they are, in fact, statutory remedies specified in s 195AZA of the Copyright Act, even if they may have their origins in equity: see generally A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (1996) 66 FCR 199, 201. As such, s 10(6)(b) of the Limitation of Actions Act has no application.
47 There does not appear to be anything in the Copyright Act which provides that claims in respect of infringements of moral rights are not to be subject to any limitation period. Part IX of the Act is silent on the topic, and there is nothing in the Explanatory Memorandum for the Bill which introduced the amendments permitting the pursuit of infringements of moral rights that suggests any policy or other reason not to temporally confine such actions. The mere fact that moral rights exist for as long as copyright exists does not advance the matter.
48 In the prospective applicant's written submissions on this issue, reference was made to a number of authorities, although none were specifically cited as suggesting that no limitation period existed in relation to actions for infringement of moral rights. The cases referenced appeared to relate to the availability of moral rights claims and the entitlement to pursue claims for damages for infringements of them, though that did not appear to be an issue in the debate between the parties.
49 The first authority referred to was Rutter v Brookland Valley Estate Pty Ltd (2009) 81 IPR 549. It concerned a successful claim for infringement of copyright, but the relief was limited to the period of six years prior to the commencement of the proceedings. The claim in relation to the infringement of the author's moral rights by non-attribution of authorship had occurred one year prior to the commencement of the proceedings, with the consequence that there was no issue as to whether it was statute barred. The second case was Lamb v Hog's Breath Company Pty Ltd (No 2) (2007) 71 IPR 379, though it made no reference to any limitation period relating to the commencement of actions in respect of moral rights and it is not relevant to the present consideration. The same can be said of Corby v Allen & Unwin Pty Ltd (2013) 297 ALR 761 and it must be observed that there, Buchanan J refused to make an award of damages in respect of established infringements of the claimant's moral rights. Finally, reference was made to the decision in Francis v Allen & Unwin Pty Ltd (2014) 108 IPR 18, though again, its relevance to the present application, other than indicating that actions can be pursued for an infringement of an author's moral rights, is minimal.
50 The great difficulty in relation to the Moral Rights Claims now relied upon by the prospective applicant is that they were hastily raised in response to the prospective respondents' assertion that the limitation period had expired in relation to the infringement claims against the person or persons who, on the prospective applicant's case, must have originally copied her material and used it for courses at the University. Whereas the prospective respondents' further written submissions articulate why the claims are statute barred, that issue is not addressed at all in the prospective applicant's further written submissions. The prospective applicant advanced no argument as to why the Limitation of Actions Act did not apply to the Moral Rights Claims. It may be that it was because the prospective applicant delivered her submissions first that the point raised by the prospective respondents was not addressed, though the prospective applicant did not seek the Court's leave to address it by further submissions. Necessarily, the issues between the parties must be dealt with on the basis on which they were advanced to the Court.
51 The bar imposed by r 7.22(1)(a) - that the prospective applicant establish that they may have a claim - is low and the prospective applicant is not required to establish that they have a prima facie claim. However, here, the prospective applicant submits that she may have a claim for infringement of her moral rights in the material which she claims she authored, against the person or persons who originally copied it some 15 years ago. Any such claim proceeds on the basis that no relevant limitation period applies to the causes of action under Pt IX of the Copyright Act. Whilst it was not doubted that the Copyright Act does not make any provision limiting the period in which actions of that nature can be brought, there is a real and substantial argument to the effect that the gap is filled by the Queensland legislation requiring that actions for damages for tort be commenced in the period of six years from the date on which the action arose. Whilst there may be a question as to whether the principle which treats an infringement of the Copyright Act as a tort for the purposes of joint liability is sufficient to attract a statutory limitation provision, the history of infringements of intellectual property rights being regarded as tortious is well-established and that strongly suggests that such causes of action will be subject to the limitation.
52 This renders success in any potential claim against the originators of the alleged infringing copies of the prospective applicant's work barely possible. It is not likely to succeed given that it arose, if at all, in 2009. It might also be questioned whether any substantial damages could be established, though as that was not debated it need not be a relevant consideration.
53 Importantly, r 7.22(1)(a) refers to the existence of "a right for the prospective applicant to obtain relief". Whilst that is often referred to as a "claim", the subrule looks beyond the mere existence of a cause of action, and poses the question of whether the prospective applicant will actually be entitled to obtain relief. There is logic to such a construction. A prospective applicant may be able to establish the existence of a cause of action, but the prospective respondent may be able to establish a complete defence or answer to it. It would be productive of wasted time and money to require a person to make discovery of documents to a prospective applicant in circumstances where, if the contemplated action were pursued, it would necessarily fail.
54 Here, no answer was provided to the prospective respondents' submissions that the claims sought to be made would be barred by s 10 of the Limitation of Actions Act. Though there may be arguments that actions for the infringement of statutory intellectual property rights are not tortious in nature so that s 10 of the Act does not apply to them, such arguments would have to overturn long lines of authority to the contrary. The prospect of doing so is unlikely. In those circumstances, the prospective applicant has not established for the purposes of r 7.22(1)(a) that she may have a right to obtain relief against the unidentified previous course co-ordinator or guest lecturer for infringement of her moral rights.