In Granger v Murdoch Books Pty Ltd [2012] FCA 909 the Court notes that
The first applicant, Bill Granger, is a well-known Australian chef and restaurateur and the author of several cookbooks. Murdoch Books Pty Ltd is a company with whom the three applicants have publishing agreements.
On 30 May 2012 the applicants filed proceedings in this Court against Murdoch Books alleging infringement of copyright, misleading or deceptive conduct and infringement of moral rights arising out of the publication by Murdoch Books of a number of cookbooks in hard copy and electronic form. They claimed damages and, with respect to the infringements of copyright, an account of profits. They also sought declaratory and injunctive relief, orders for the delivery up of all copies of the cookbooks in the company’s possession, custody or power and their destruction, certain public acknowledgments of its misleading conduct and a public apology.
After a preliminary skirmish about whether the proceedings should be referred to arbitration under s 8(1) of the Commercial Arbitration Act 2010 (NSW), which was ultimately not pursued, Murdoch Books filed a defence denying any wrongdoing. The defence was filed on 18 July 2012. Two days later Murdoch Books served a notice of offer to compromise under r 25.01 of the Federal Court Rules 2011 and on 6 August 2012, after an exchange of correspondence designed to clarify the meaning of its terms, the applicants accepted the offer by serving a notice of acceptance pursuant to r 25.08(3). The notice was accompanied by a letter addressed to the solicitors for Murdoch Books advising of the applicants’ intention to have the matter relisted so that appropriate declarations, injunctions and orders could be made by the Court to give effect to the offer of compromise. There then followed correspondence attaching draft orders. There was some disagreement about the terms of the draft orders. Most of the disagreement fell away. On 22 August 2012 I made a number of declarations and other orders by consent. There were minor disagreements about two matters upon which I ruled at the time. The remaining issue relates to one proposed order.Katzmann J goes on to note the agreement between the parties that the respondent pay to the applicants
(a) a sum in relation to the exploitation by the respondent of the compilation cookbooks entitled ‘Best of Bill’ and ‘Bill Cooks for Kids’, both in paper and electronic form (together, the Compilation Cookbooks), which is to be paid to the applicants by 4 September 2012 and otherwise in accordance with the payment terms contained in clause 14(a) of the agreement between the first and second applicants and the respondent dated 14 December 2005, and calculated in the following manner:
i) 18.5% of all sums received by the respondent (excluding any GST) up to and including 3 September 2012 in relation to its exploitation of the Compilation Cookbooks in paper form; and
ii) 25% of all sums received by the respondent (excluding any GST) up to and including 3 September 2012 in relation to its exploitation of the Compilation Cookbooks in electronic form; less the sum of $60,363.24 (which has already been paid to the Applicants by the Respondent); and
(b) such further sums on an ongoing basis in relation to the exploitation by the Respondent of the Compilation Cookbooks, which sums are to be paid to the Applicants and otherwise in accordance with the payment terms contained in clause 14(a) of the agreement between the First and Second Applicants and the Respondent dated 14 December 2005, and calculated in the following manner:
i) 18.5% of all sums received by the Respondent (excluding any GST) on and from 4 September 2012 in relation to its exploitation of the Compilation Cookbooks in paper form; and
In Insight SRC IP Holdings Pty Ltd v The Australian Council for Educational Research Limited [2012] FCA 779 Besanko J has awarded nominal damages of $10 and additional damages of $32,500 for copyright infringement. The Court notes that -ii) 25% of all sums received by the Respondent (excluding any GST) on and from 4 September 2012 in relation to its exploitation of the Compilation Cookbooks in electronic form.
This is a claim for damages for infringement of copyright by the applicants against the respondent under subs 115(2) of the Copyright Act 1968 (Cth). The applicants claim that the respondent infringed their copyright in a questionnaire known as the School Organisational Health Questionnaire (SOHQ). At the trial the applicants made an election for damages rather than an account of profits. The applicants also claim from the respondent additional damages under subs 115(4) of the Act. Finally, the applicants claim a declaration of ownership of the SOHQ and an injunction restraining various acts by the respondent.
Insight SRC IP Holdings Pty Ltd is the first applicant and it is said by the applicants to be the owner of the copyright in the SOHQ. The company was incorporated on 30 April 2009, and Dr Peter Michael Hart is the director and major shareholder of the company. Dr Hart holds his shareholding through Hart Cultural Lodges Pty Ltd. Hart Cultural Lodges was incorporated on 22 May 2006 and is the trustee of Dr Hart’s family trust. That family trust is called the Hartski Holdings Trust. One of the witnesses at the trial was Dr Peter Cotton and he owns 4 of the 80 shares in Insight SRC IP Holdings. In evidence he said that he owned four units in the Insight SRC IP Holdings Unit Trust.
Insight SRC Pty Ltd is the second applicant and it is said by the applicants to be the exclusive licensee of the copyright in the SOHQ. The exclusive licensee has the same rights of action as the owner of copyright as if the licence had been an assignment (paragraph 119(a) of the Act). Insight SRC was incorporated on 6 November 1997 as Social Research Consultants Pty Ltd and, on 3 April 2000, changed its name to Insight SRC Pty Ltd. The director and major shareholder – either directly or with associated entities – is Dr Hart. Dr Cotton owns the 12 A class shares in the company and 5 of the 100 ordinary shares.
The respondent is the Australian Council for Education Research Limited (ACER). It is a not-for-profit company.
When the applicants commenced their proceeding they also made a claim against Independent Schools Victoria Inc (ISV), which, on their case, also infringed the copyright in the SOHQ. They settled their claim against ISV on 4 August 2011. Nevertheless, because of the way in which the applicants formulated their claim for damages against ACER, ISV featured prominently in the evidence. The terms of settlement between the applicants and ISV were put in evidence. For reasons I will give, the applicants are not entitled to an award of general damages against ACER. Therefore, the amount ISV agreed to pay the applicants under the terms of settlement with them is not relevant to the relief I will grant to the applicants. In any event, the amount ISV agreed to pay the applicants suggests to me that it agreed to pay the applicants an amount for their costs.
The SOHQ is a questionnaire which consists of 57 questions arranged under 12 headings or, as they were referred to in the evidence, modules. Other words used in the evidence or documents for questions were items or measures. The applicants’ case is that the SOHQ was part of an article entitled “Development of the School Organisational Health Questionnaire: A measure for assessing morale and school organisational climate” which was published in the British Journal of Educational Psychology (2000), 70:211-228. Three studies were said to have been carried out for the purpose of developing the questionnaire. The applicants accept that these studies were carried out between 1990 and 1992 while Dr Hart was employed by the Ministry of Education in Victoria.
Between early 2006 and October 2009, ACER reproduced the SOHQ as part of a project with ISV called the Building Educational Effectiveness project or, as it was referred to in the evidence, the BEE project. Not all of the questions in the SOHQ were reproduced and provided to ISV; only 25 questions and 5 modules were reproduced. Nevertheless, it is not suggested by ACER that that did not amount to infringement of the copyright in the SOHQ.
