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Australian Industrial & Intellectual Property (Issue 259)

The 31 July 2007 edition of Australian Industrial & Intellectual Property (Issue 259) has been published. It summarises:

  • Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 (implied licence to use architectural plans)
  • Burge v Swarbrick [2007] HCA 17 (copyright infringement - artistic craftsmanship exemption)

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Copyright Protected Material - Are you leaving yourself exposed? - Deacons

Copyright Protected Material � Are you leaving yourself exposed? - Marie Wong and Annabelle Nilsson of Deacons reports on the High Court case of Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55:

  • In the absence of an agreement to the contrary, the purchaser of land had an implied licence to utilise development drawings for construction on the land where architectural plans had already been prepared for that purpose. This was regardless of the fact that no actual payment for the plans had previously been made to the architect of the plans.

Marie Wong and Annabelle Nilsson note that the case highlights the importance for commercial organisations to ensure that their rights to use and retain copyright material are expressed at the outset of entering into commercial arrangements.

Link to Deacons article


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Concrete v Parramatta Design & Developments

The High Court has today delivered its judgment in Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55 - http://www.austlii.edu.au/au/cases/cth/high_ct/2006/55.html

First Glance

Concrete Pty Ltd (Concrete) (Costa & Associates acting) has succeeded in appealing to the High Court to overturn a decision by the Full Federal Court, which

Background

Parramatta Design & Developments Pty Ltd (Parramatta Design) (Hal Lawyers acting) provided architectural design services and was found to have prepared plans and drawings for a development on Nelson Bay (NSW) of 14 units. After a falling out with joint venture partners, a trustee was appointed for the sale of the site. However, Parramatta Design put the trustees on notice that “we are the designers and owners of the copyright of an approved [development approval] for the 14 unit development and that it would not grant a licence to the use of “our copyright or our plans”.

Concrete had purchased the land and later offered to pay Parramatta Design a licence to reproduce the plans and drawings for the 14 unit development. This offer was refused. At trial, Concrete asserted that it had an implied licence. This claim of defence was based on a claim that the licence between Parramatta Design and the joint venture partners extended in principle to any successor in the title to the land which had the benefit of the relevant development consent.

The High Court appeal dealt with whether Concrete had an implied licence to use architectural plans and drawings prepared by Parramatta Design for the purpose of undertaking the development in Nelson Bay. The High Court appeal also dealt with whether an apprehended bias could properly be established in regard to the conduct of the primary judge.

Decision

The High Court unanimously allowed the appeal but delivered separate judgments (Kirby and Crennan J delivering joint judgments) with the effect that Concrete possesses an implied licence to use the architectural plans and drawings and that the orders set by Branson, Kiefel and Finkelstein JJ are set aside


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