-- JonathanMo - 14 Sep 2015
In Computermate Products (Aust) Pty Ltd v Ozi-Soft Pty Ltd (1988) 20 FCR 46; 12 IPR 487, it was accepted that the word 'licence' in section 37 of the CA meant no more than simply 'consent'. The importer argued that it had a 'bare licence' or one not supported by consideration, which could be revoked at will on giving reasonable notice. The court accepted this interpretation of 'bare licence'. However, it held (at FCR 52) that 'nevertheless there must be evidence of the necessary facts from which one can properly infer the giving of that consent or permission by the copyright owner'.
See also CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] UKHL 15; (1988) 11 IPR 1.
'Authorisation' and infringement of copyright
Sections 36(1) and 101(1) of the CA raise the issue of what may constitute 'authorisation. See APRA Ltd v Jain (1990) 26 FCR 53; 18 IPR 663, in which it was stated that:(p)lainly Mr Jain had the power to control what music was played at the tavern and also to determine whether a licence from the appellant would be applied for. He did nothing about the matter at all. He allowed a situation to develop in which bands went on playing the appellant's music night after night ... The evidence revealed a 'studied and deliberate course of action in which Mr Jain decided to ignore the appellant's rights and to allow a situation to develop and to continue ... It was within his power to control what was occurring but he did nothing at all. In those circumstances we have reached the conclusion that ... Mr Jain authorised the infringement of copyright in question contrary to section 36 of the Act.
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