Hardingham v RP Data Pty Limited  FCA 2075 (9 December 2019)
Unsuccessful copyright infringement claim by Hardingham.
The applicant initially made certain demands in April 2014, but did not commence proceedings until July 2018.
The applicant was a professional photographer and the sole director of Real Estate Marketing Australia Pty Ltd which had been commissioned by various real estate agencies to produce photographs and floors plans for use in the sale or lease of properties which were published on the websites of those agencies and on real estate marketing platforms including the realestate.com.au (REA) platform.
The terms of listing on the REA platform included a provision under which the real estate agencies granted an irrevocable, perpetual, world-wide, royalty free licence to REA to publish, copy, licence to other persons, use and adapt for any purpose related to its business any content provided to it.
The respondent obtained various photographs and floor plans produced by the applicant and reproduced them on its Corelogic website. They were sourced from the REA platform under a licence arrangement.
The applicant was aware his photographs would be published on the REA platform, but contended that only a limited implied licence was granted for the purpose of marketing properties for sale or lease, and use of the photographs by the respondent was not for this limited purpose.
Generally, the author is the owner of copyright works, but this is subject to any agreement between the parties and courts are prepared to imply a condition into commissioning arrangements. The question is what the client expressly or impliedly agreed to pay for; the client may have agreed to pay for copyright in the commissioned work or for some form of licence or for no interest relating to the copyright. In the case of an express or implied licence, the copyright owner bears the onus of establishing the absence of such a licence.
Thawley J concluded that the applicant “authorised, consented to or permitted (that is licensed) the agencies to sub-licence the copyright works to REA on terms which permitted the agencies to grant the licence contained in REA’s usual terms and conditions, which included authorising REA to grant a sub-licence. REA granted a sub-licence to RP Data which was not contended to go relevantly beyond what was permitted by the sub-licence granted to REA by the agencies. Nor was it submitted that RP Data acted beyond the scope of the sub-licence granted by REA.”
It followed that s15 of the Copyright Act was engaged. The actions of RP Data are “deemed to have been done with the licence of the owner of … copyright” because RP Data’s acts were authorized by the licence granted by the agencies to REA, being a licence which bound the owner of the copyright.
It is also worth noting that his Honour found that the real estate agencies were not the equitable owners of copyright in the floor plans and photographs. The respondent was not able to identify any interest or right on the part of the agencies which would be insufficiently recognised by a licence as opposed to an assignment of copyright.
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