PPCA Limited & Ors v Jabouri Brothers & Ors Pty Ltd [2011] FMCA 799 (13 October 2011)

Last Updated: 21 October 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PPCA & ORS v JABOURI BROTHERS PTY LTD & ORS

[2011] FMCA 799

COPYRIGHT – Breach of copyright in sound recordings by the public performance of them in clothing stores – assessment of compensatory and additional damages. PRACTICE AND PROCEDURE – Default judgment – failure to file a response to the principal application.

Copyright Act 1968 (Cth), ss.115, 126 Federal Magistrates Court Rules 2001 (Cth)

APRA v Cougars Tavern [2008] FMCA 369 Aristocrat Technologies Australia Pty Limited v D.A.P. Services (Kempsey) Pty Limited (In Liquidation) [2007] FCAFC 40 Australasian Performing Rights Association Ltd v Jain (1990) 26 FCR 53 Australasian Performing Rights Association Ltd v Metro on George Pty Ltd and Ors [2004] FCA 1123; (2004) 61 IPR 575 Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR 69 Autodesk Inc v Yee (1996) 68 FCR 391 Azzopardi v R (2001) 205 CLR 50 Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 Foxtel Management Pty Limited v The Mod Shop Pty Ltd [2007] FCA 463 Fraserside Holdings v Venus Adult Shops [2005] FMCA 997 General Tire and Rubber Co v Firestone Tyre and Rubber Co Ltd [1975] 1 FSR 273; [1976] RPC 1 Grebo Meters Ltd v Metropolitan Gas Meters Ltd (1911) 28 RPC 157 Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443 Hunter v Fitzroy Robinson and Partners [1978] 4 FSR 167 Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd [1990] 1 Qd R 231 Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135 Microsoft Corporation v Glostar Pty Ltd (2003)57 IPR 518 Microsoft Corporation v Goodview Electronics (2000) 49 IPR PPCA v Adelaide City Entertainment [2005] FMCA 923 PPCA v All Girls Entertainment [2010] FMCA 593 Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 Raben Footwear Pty Ltd v Polygram Records Inc & Anor (1997) 145 ALR 1 Ravenscroft v Herbert and New English Library [1980] RPC 193 Sega Enterprises Ltd v Galaxy Electronics Pty Ltd (1998) 39 IPR 577 Stovin-Bradford v Volpoint Properties Ltd [1971] 1 Ch 1007 Universal Music v Hendy Petroleum [2003] FMCA 373 Universal Music Australia Pty Ltd v Miyamoto [2004] FCA 982 Zero Tolerance Entertainment Inc & Ors v Venus Adult Shops Pty Ltd & Ors [2007] FMCA 155

First Applicant:

PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED (see attachment)

First Respondent:

JABOURI BROTHERS PTY LTD

Second Respondent:

AZAM JABOURI

Third Respondent:

OMAR JABOURI

File Number:

SYG 1128 of 2011

Judgment of:

Driver FM

Hearing date:

13 October 2011

Delivered at:

Sydney

Delivered on:

13 October 2011

REPRESENTATION

Counsel for the Applicant:

Mr S Balafoutis

Solicitors for the Applicant:

Phonographic Performance Company of Australia Limited

The Second Respondent appeared in person

INTERLOCUTORY ORDERS

(1) On the Application in a Case filed on 29 August 2011, the Court gives judgment against the respondents pursuant to rule 13.03B of the Federal Magistrates Court Rules 2001 (Cth).
(2) The respondents, whether by themselves, their servants, agents or otherwise, be permanently restrained from causing or authorising any of the Identified Infringing Recordings performed in public without the licence of the relevant applicants.
(3) Pursuant to s.115(2) of the Copyright Act 1968 (Cth), the respondents are to pay compensatory damages in the amount of $1,844.48.
(4) Pursuant to s.115(4) of the Copyright Act 1968 (Cth), the respondents are to pay additional damages, fixed in the amount of $30,000.
(5) The respondents are to pay the applicant’s costs and disbursements of and incidental to the Application and the Application in a Case, fixed in the sum of $8,200.

Identified Infringing Recordings:

Artist	Title
Cascada	Evacuate the Dance Floor
Calvin Harris	I’m Not Alone
Groove Armada	I See You Baby
Eurythmics	Sweet Dreams
Rihanna	Don’t Stop the Music
Dizzee Rascal & Armand Van Helden	Bonkers
Usher	More
Jay Z feat Rihanna	Run This Town
Drake	The Best I Ever Had

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1128 of 2011

PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED

First Applicant

(see attachment)

And

JABOURI BROTHERS PTY LTD

First Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. I have before me an Application in a Case filed on 29 August 2011 seeking default judgment, pursuant to rule 13.03B of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) or in the alternative, summary judgment pursuant to rule 13.07 of the Rules.
2. The principal proceedings were commenced by application filed on
   3 June 2011 under the Copyright Act 1968 (Cth) (“the Copyright Act”). That application seeks relief in respect of the asserted infringement of copyright in sound recordings performed in public. The application seeks declaratory relief, a permanent restraining order, compensatory and additional damages, interest and costs. The application for declaratory relief has not been pressed, but the application is pressed in the remainder.
3. No response to the principal application has been filed. The respondents have not filed an address for service and the respondents have not appeared together at any stage in the proceedings. One respondent, Mr Assam Jabouri, appeared on his own behalf for the purposes of today’s hearing. Having regard to order made by me on
   11 July 2011, the lack of a response to the principal application and a lack of any meaningful participation by the respondents in the proceedings to this point satisfies me that the applicants are entitled to default judgment. The Court must nevertheless give consideration to the entitlement to relief in the principal proceedings.
4. The issues in the principal application are dealt with in the applicants’ written submissions filed in Court by leave today. I generally accept those submissions and adopt them for the purposes of this judgment with some qualifications.
5. The principal application by the first applicant (PPCA) and the remaining applicants (Record Companies) alleges that the first respondent (Jabouri), the second respondent (Azam) and the third respondent (Omar) have infringed the Record Companies’ copyright in certain sound recordings. Azam has been a director and secretary of Jabouri since 7 August 2001.[1] Omar has been a director of Jabouri since 15 March 2005.[2] Azam and Omar are the only shareholders in Jabouri.
6. The right which is alleged to be infringed is conferred by s.85(1)(b) of the Copyright Act. Namely, the right to cause the sound recordings to be heard in public.
7. Jabouri owns and operates a clothing retail chain (Voodoo Clothing) operating in at least seven locations in New South Wales. The stores are located in Centro Bankstown, Castle Hill Towers, Liverpool Westfield, Macarthur Square, Miranda Westfield, Penrith Westfield and Wollongong Crown.[3]
8. It is alleged that, without a licence provided by the Record Companies and PPCA, the respondents have caused sound recordings owned or controlled by the Record Companies to be publicly performed at the Voodoo Clothing stores since at least late November 2006. In late November 2006, an employee of PPCA heard sound recordings being played in a Voodoo Clothing store.[4]
9. The Record Companies and PPCA seek damages and orders restraining the respondents from causing their sound recordings to be played by the respondents in public. Pursuant to Input Agreements entered into between PPCA and the Record Companies, PPCA is entitled to commence proceedings in connection with the infringement of the Record Companies’ rights.[5]
10. As the holder of a non-exclusive licence, PPCA can sue for breach of copyright if it joins the owner of the copyright as a co-plaintiff: Sega Enterprises Ltd v Galaxy Electronics Pty Ltd (1998) 39 IPR 577 at 581-2. It is for this reason that PPCA has joined all the Record Companies as applicants. PPCA adopted a similar procedure in PPCA v Adelaide City Entertainment [2005] FMCA 923 (Adelaide City) and PPCA v All Girls Entertainment [2010] FMCA 593 (All Girls).
11. I accept the background history provided by the applicants and the evidence in support of the attempts by the applicants to resolve the issue of licence fees for the public performance of the sound recordings in issue. I accept that copyright subsists in the relevant works and that the copyright has been infringed by the respondents.
12. I further accept that the applicants are entitled to compensatory damages. Indeed, I received as an exhibit a document apparently emanating from the company and signed by Assam Jabouri on
    12 September 2011 enclosing a cheque for the sum of $1,844.48, which is the sum ultimately claimed as compensatory damages, pursuant to s.115(2) of the Copyright Act. The parties have, in more recent times, been in discussions concerning these proceedings notwithstanding the fact that the respondents have not participated in a formal way in the proceedings to date by compliance with the Court’s orders.
13. I accept that the respondents, perhaps rather late and in a desultory way, sought to resolve the case. However, no resolution has been achieved. The main issue between the parties in those discussions has apparently been the issue of costs. However, perhaps more significantly there is an issue of additional damages which was raised in the original application and on the evidence, which I accept, was raised prior to the proceedings in correspondence. In addition to the affidavit evidence relied upon by the applicants, I accepted a further bundle of documents as an exhibit (exhibit A1).

Application for default judgment or alternatively summary judgment

14. The applicants commenced the principal proceedings on 3 June 2011.
15. On 27 June 2011, there was a directions hearing in the matter attended by the applicants’ lawyers and Omar Jabouri. The matter was adjourned until 11 July 2011.[6]
16. On 11 July 2011, the next directions hearing in the matter was attended by the applicants’ lawyer but nobody representing any of the respondents appeared. The Court made orders for the progress of the matter including orders requiring the respondents to file and serve a response no later than 25 July 2011 and giving the applicants liberty to apply for default judgment if the respondents did not file a response by the required date.
17. The respondents did not file a response by 25 July 2011 and have not filed any response (or any other document[7] including a notice of appearance).
18. On 29 August 2011, the applicants filed an application for default judgment, or alternatively summary judgment, against the respondents.
19. Rule 13.03A of the Federal Magistrates Court Rules states that a respondent is in default if it fails to comply with an order of the Court. The respondents are in default because they failed to file a response within the time specified or at all.
20. Rule 13.03B(2)(d) of the Federal Magistrates Court Rules provides that if the respondent is in default, the Court may give any judgment or make any order against the respondent.
21. Rule 13.07 of the Federal Magistrates Court Rules provides for summary judgment. The rule provides that, if in a proceeding:
    • (a) there is evidence of the facts on which the claim is based; and
    • (b) either:
      • (i) there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim; or
      • (ii) the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim,

the Court may give judgment on that claim and make any orders or directions that the Court considers appropriate.

22. In support of their application, the Record Companies and PPCA rely upon the affidavits of Lynne Small (filed on 3 June 2011), Youstina Palmiotto (filed on 3 June 2011), Jakub Marcinec (filed 3 June 2011) and Anna Killick (filed 29 August 2011).

Subsistence and ownership of copyright

23. The applicants’ action is brought pursuant to Part V of the Copyright Act. Section 126 of the Copyright Act, which is contained within Part V, sets out two presumptions that the applicants rely upon.
24. First, copyright is presumed to subsist in the subject matter to which the action relates if the respondent does not put the question of subsistence of copyright in issue.
25. Secondly, where the subsistence of copyright is established, the plaintiff shall be presumed to be the owner of the copyright if he or she claims to be the owner of the copyright and the respondent does not put the question of ownership of copyright in issue.
26. In these proceedings, the Record Companies have claimed to be the owners of the copyright in the nine sound recordings.[8] The respondents have not responded to the application and neither question has been put in issue.
27. The application of these presumptions means that, for the purpose of these proceedings, the Record Companies have established that each of them owns the copyright in the relevant sound recordings and that copyright subsists in those sound recordings.[9]

Infringement of copyright

28. The evidence establishes that none of the Record Companies have issued a licence to the respondents to cause any of their sound recordings to be heard in public. The PPCA has also not issued a licence of any nature to the respondents.[10]
29. The affidavits of Youstina Palmiotto, filed on 3 June 2011, and Jakub Marcinec filed on 3 June 2011 provide direct evidence that Voodoo Clothing stores have been causing at least nine sound recordings of the Record Companies to be heard in public without a licence:
    1. at paragraph 13 of his affidavit, Mr Marcinec gives evidence that he heard six sound recordings played in Voodoo Clothing’s Westfield Miranda store on 30 October 2009; and
    2. at paragraph 12 of her affidavit, Ms Palmiotto gives evidence that she heard three sound recordings played at Voodoo Clothing’s Westfield Miranda store on 24 February 2011.
30. In addition to the infringements that occurred on 30 October 2009 and 24 February 2011, on the basis of the evidence set out below the Court may comfortably infer that Jabouri has been infringing the Record Companies’ copyright by causing or authorising the Record Companies’ sound recordings to be heard in public without their licence since at least late November 2006.
31. First, at least some of the Voodoo Clothing stores have been in operation since at least November 2006. This is established by the following evidence:
    1. PPCA’s employee, Catherine Middleton, visited the Macarthur Square Voodoo Clothing store on 23 November 2006;[11]
    2. Ms Middleton made a file note on 8 December 2006 also stating that there was a Voodoo Clothing store located at Castle Towers;[12]
    100. the front page of Voodoo Clothing’s website contains a notice “Copyright 2006 Voodoo Clothing Australia”;[13] and
    4. Azam sent to PPCA an email on 18 August 2011 attaching leases providing trading periods for three of the Voodoo Clothing stores. That email showed that Centro Westfield opened later than 2006, Penrith Westfield opened in 2005 and Wollongong Crown opened later than 2006. Azam did not dispute that the other Voodoo Clothing stores opened in 2006.
32. Secondly, one or more of the respondents, most likely Jabouri, have owned and operated all the Voodoo Clothing stores at all relevant times. This may be comfortably inferred from the following evidence:
    1. the leases provided by Azam on 18 August 2011 show that Jabouri was the lessee of the three Voodoo Clothing stores – the Penrith Westfield lease dated March 2005 describes Jabouri’s trading name as “Voodoo”;
    2. the principal place of business of Jabouri and the personal addresses of Azam and Omar are all recorded by ASIC as 139 Greenacre Road, Greenacre NSW 2190;[14]
    100. PPCA’s file note on 8 December 2006 to the effect that Voodoo Clothing’s head office was 139 Greenacre Road, Greenacre;[15]
    4. the White Pages has an entry for Voodoo Clothing at 139 Greenacre Road, Greenacre;[16]
    5. PPCA commenced sending letters to Jabouri concerning the Voodoo Clothing stores to 139 Greenacre Road in December 2006.[17] Since that time, the respondents have never denied that they operate the Voodoo Clothing stores; and
    6. notwithstanding Voodoo Clothing had been operating stores since 2006, the name “Voodoo Clothing” was first registered as a business name on 12 October 2009. Azam was registered as the owner from 12 October 2009 until 26 August 2010. Jabouri has been registered as the business owner since that time.[18]
33. Thirdly, the Voodoo Clothing stores have played sound recordings since November 2006. This may be comfortably inferred from the following evidence:
    1. on 23 November 2006, PPCA’s employee, Ms Middleton, visited the Macarthur Square Voodoo Clothing store and recorded that she witnessed the performance of sound recordings;[19]
    2. on 9 June 2007, PPCA’s employee, Nicole Kaniszuski, heard sound recordings played in Voodoo Clothing’s Westfield Penrith store;[20]
    100. on 3 August 2007, PPCA’s employee, Samantha Hales, heard sound recordings played in Voodoo Clothing’s Westfield Miranda store;[21]
    4. on 30 October 2009, Mr Marcinec heard six sound recordings played in Voodoo Clothing’s Westfield Miranda store;[22]
    5. on 5 March 2010, Azam sent an email stating “we are not refusing to pay for the music we use in our stores”;[23]
    6. on 24 February 2011, Ms Palmiotto heard three sound recordings played at Voodoo Clothing’s Westfield Miranda store;[24]
    7. given that all Voodoo Clothing stores are owned or operated by one or more of the respondents and operate under the same name, it is likely that they all employ similar marketing techniques such as the playing of recorded music;
    8. in Ms Small’s experience, it is common practice for clothing stores to utilise recorded music to entertain shoppers;[25]
    9. PPCA has contacted the respondents on more than 20 separate occasions concerning their failure to obtain a licence. Over that period the respondents have never denied that they were publicly playing the Record Companies’ sound recordings at any of their stores;
    10. the respondents have not adduced any evidence denying that recorded music was played in all of its stores since December 2006. It that were true, the respondents could easily adduce such evidence. The respondents’ failure to adduce such evidence weighs against them: all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted (Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65, quoted with approval by Gleeson CJ in Azzopardi v R (2001) 205 CLR 50 at 59).
34. The inevitable conclusion is that the respondents have been infringing the Record Companies’ copyright by causing or authorising the Record Companies’ sound recordings to be heard in public without their licence since about December 2006.

Liability of Azam and Omar

35. On the basis that Jabouri was the owner and operator of the Voodoo Clothing stores at all relevant times, Azam and Omar are also liable for those infringements for the reasons set out below.
36. Azam and Omar were each directors and shareholders of Jabouri at all relevant times. Azam has been a director and secretary of Jabouri since 7 August 2001.[26] Omar has been a director of Jabouri since 15 March 2005.[27]
37. Each of these directors authorised the infringements of Jabouri and/or were joint tortfeasors.[28] As directors they had the day to day control of a small proprietary limited company. They were notified of the infringements on numerous occasions and they chose to ignore the applicants’ rights.
38. PPCA took the following steps to notify Azam and Omar of the infringements on the following occasions:
    1. on 8 December 2006, 4 January 2007 and 25 January 2007, PPCA sent a letter to 139 Greenacre Road (where Azam and Omar reside) addressed to the operations manager of Voodoo that the playing of sound recordings required a licence from PPCA or the Record Companies and that they would be liable to be sued if no licence was obtained;[29]
    2. on 31 October 2007, PPCA sent a letter to 139 Greenacre Road addressed to the operations manager of Voodoo requesting that Voodoo apply for a licence and referring to the decision of the Federal Magistrates Court in Adelaide City where $85,000 in additional damages was awarded;[30]
    100. on 19 November 2009, PPCA notified Azam (who was the registered owner of the business name “Voodoo” at the time) by a letter sent to 139 Greenacre Road and another letter sent to Voodoo Clothing’s Westfield Miranda store that an inspector had attended the premises and noted that sound recordings had been played without a licence;[31]
    4. on 8 December 2009, PPCA notified Azam that proceedings against him would be prepared;[32]
    5. on 23 December 2009, PPCA notified Azam that he should contact PPCA on or before 6 January 2010;[33]
    6. on 14 January 2010, 19 January 2010 and 3 February 2010, PPCA left messages with Voodoo Clothing’s head office. None of these calls were returned;[34]
    7. on 17 February 2010, PPCA sent a letter to Azam referred to the three telephone calls and requesting that Azam contact PPCA by 25 February 2010;[35]
    8. on 2 March 2010, PPCA telephoned Voodoo Clothing’s head office and asked to speak to Azam but was told he was unavailable, PPCA was given a contact email address for Azam ([e-mail]);[36]
    9. on 5 March 2010, PPCA sent a letter to Azam and email (to [e-mail]) enclosing a copy of the draft application in these proceedings;[37]
    10. on 5 March 2010, Azam sent an email from the email address [e-mail] stating “we are not refusing to pay for the music in our stores and we are happy to pay for each site. However we are only a newly operated management company within the last 12 months. . .we will not be accepting any passed tense usage by old directors or managers.”[38]
    11. on 8 March 2010, PPCA sent an email and letter to Azam enclosing a licence fee application;[39]
    50. on 22 March 2010, PPCA sent an email to PPCA asking Azam to complete the licence fee application as soon as possible;[40]
    13. also on 22 March 2010, in response to an email from Azam, PPCA asked Azam for a list of Voodoo Clothing’s stores and their respective sizes;[41]
    14. on 29 March 2010, 23 April 2010, 4 May 2010 and 13 May 2010, PPCA sent Azam emails advising that PPCA was waiting on a completed licence application;[42]
    15. on 25 February 2011 (after Ms Palmiotto had conducted a further inspection of a Voodoo Clothing store and heard sound recordings being played), PPCA sent a letter to Azam, Omar and Jabouri noting that Jabouri had now been registered as the business owner of Voodoo Clothing and referring to a decision of the Federal Magistrates Court where additional damages in the sum of $90,000 was awarded;[43]
    16. also on 25 February 2011, PPCA sent a letter to Azam and Omar enclosing copies of previous letters sent by PPCA;[44]
    17. on 3 March 2011, PPCA sent a letter to Azam and Omar advising that an inspector had attended a Voodoo Clothing store on 24 February 2011 and noted that sound recordings had been played without a licence;[45]
    18. on 7 March 2011, PPCA sent a letter to Azam and Omar enclosing a copy of a draft application and a draft affidavit in these proceedings and advising that PPCA would be filing the application shortly.[46]
39. It was in the power of Azam and Omar to control what was occurring – either by ceasing the playing of the sound recordings or paying the licence fees – but they chose to do nothing at all. In the circumstances, the words of the Full Federal Court are apposite:[47]
    • [The director engaged in a] studied and deliberate course of action in which [he] decided to ignore the appellant’s rights and to allow a situation to develop and to continue in which he must have known that it was likely that the appellant’s music would be played without any licence from it.
40. By engaging in this conduct, Azam and Omar are also liable for the infringements of Jabouri.

Remedies

41. The applicants seek three forms of principal relief against the respondents:
    1. Permanent orders restraining the public performance of the Record Companies’ recordings without the licence of the relevant Record Company or PPCA.
    2. Damages pursuant to s 115(2) in the sum of $1,844.48 payable by Jabouri, Azam and Omar.
    100. Additional damages pursuant to s 115(4) in the amount of $90,000 payable by Jabouri, Azam and Omar.
42. In addition, the applicants seek their costs.

Permanent orders

43. In order to demonstrate that a final injunction is warranted, the applicants are required to establish a copyright infringement which is likely to continue, or a strong case of threatened infringement and a probability of damage. Furthermore, it has been held that injunctions in broad terms should be granted where the respondents have shown themselves to be “untrustworthy” or have flagrantly breached copyright. [48]
44. The evidence establishes that the respondents have infringed the copyright of the Record Companies. The respondents’ infringement of the Record Companies’ copyright is very likely to continue unless restrained. Although Jabouri continues to operate the Voodoo Clothing stores and is aware of these proceedings, there has been no attempt by Jabouri or its current directors, Omar and Azam, to obtain a licence from the Record Companies and from the PPCA. In such circumstances, the applicants are justified in having a reasonable apprehension that the respondents will continue, unless restrained, to infringe copyright in all of their sound recordings.
45. The infringement of copyright by the respondents has been flagrant and justifies permanent injunctions in the terms sought. The applicants no longer seek declarations.

Damages pursuant to s.115(2) of the Act

46. The applicants have elected to sue for damages for infringement, not an account of profits.
47. The appropriate measure of damages is the “licence fee” approach. This approach to assessment has often been applied.[49] In a case where the court may infer that, presented with a choice between paying the licence fee and not using the work, the infringer would have paid the licence fee, the approach is a logical one.[50]
48. Such an inference may be made in this case. Voodoo Clothing relies upon the public playing of music to attract customers and generate its business. It is a ready inference that the infringer would pay the licence fee rather than change the nature of its business.
49. The licence fees sought by PPCA are set out in annexure A to the submissions. These licence fees are based on paragraphs 83 to 91 of Ms Small’s affidavit but modified to take account of reduced trading periods of some stores as notified by Azam on 18 August 2011. These licence fees are based on PPCA’s fee structure, which has evolved over PPCA’s years of operation.[51] A licence granted by PPCA permits the licensee to publicly play all of the Record Companies’ sound recordings. There are 34 separate tariffs, applying to different types of venues, that PPCA publishes annually on its website.[52] In addition to the type of venue, the level of licence fees applicable to any particular entity varies depending upon the size of the venue and the number of days of operation.
50. As a retail store, Voodoo Clothing is subject to licence fees calculated in accordance with tariff M.[53] The licence fees under Tariff M are calculated by reference to the size of the store. PPCA has assumed that the stores are in the smallest category. PPCA also initially assumed that all the stores opened in December 2006 (the first date that PPCA heard sound recordings at the store) and remain open. Following the receipt of information from Azam, PPCA has changed the trading periods of some of the stores and revised its calculations accordingly.
51. Accordingly, PPCA seeks $1,844.48 in compensatory damages as set out in Annexure A.

Additional damages pursuant to s.115(4) of the Copyright Act

52. Section 115(4) of the Copyright Act permits the Court to award additional damages where an infringement of copyright has been established and where the Court considers it proper to do so.
53. The principles relating to the award of additional damages are well established. The purpose of an award of damages under s.115(4) is to penalise an infringer of copyright. “The infringer has been regarded, at least since the 18th century, as a pirate who ought to be treated accordingly.”[54]
54. Additional damages is an independent head of relief beyond the objective of compensation for the copyright owner.[55]
55. The factors which the Court may take into account are considered below:

The flagrancy of the infringement (s.115(4)(b)(i) of the Copyright Act)

56. Flagrancy includes “deliberate and calculated copyright infringement.”[56] There can be no doubt that the respondents deliberately infringed the copyright of the Record Companies. The respondents received over 20 separate telephone calls or letters from PPCA notifying them that they were obliged to enter into a licence arrangement and pay licence fees. The respondents failed to pay the licence fees and instead chose to continue publicly playing the Record Companies’ recorded songs.

The need to deter similar infringements of copyright (s.115(4)(b)(ia) of the Copyright Act)

57. In the Supplementary Explanatory Memorandum to the Bill in which this sub-section was introduced, it was stated:
    • This amendment requires a court where it is satisfied that it is proper to do so to consider whether the award additional damages having regard not only to the particular circumstances of the infringement but also in the context of the broader impact on similar conduct and the award of additional damages in relation to that conduct.[57]
58. Considerable weight ought to be given to this factor. At [92]-[94] of Ms Small’s affidavit, Ms Small gave evidence that the public performance of protected sound recordings without a licence has become an endemic problem in the recording industry. The very large number of commercial ventures in Australia playing protected sound recordings makes it difficult and expensive for PPCA and copyright owners to identify, investigate and prosecute infringers. In contrast, it is very easy for infringers to play sound recordings and evade detection due to the limited resources of PPCA.
59. The respondents are leading examples of infringers as a result of the number of stores they operate (seven) and behaviour and their calculated decision to continue infringing. A substantial award of additional damages will serve as a strong deterrent to both large and small businesses.
60. The respondents’ behaviour in refusing to obtain a licence despite the many demands made by PPCA over a period of more than 4 years is also a leading example of activity which ought not be condoned. The respondents left PPCA with no choice except to commence court proceedings against them. This is a waste of the Court’s time and resources as well as the time and resources of the applicants. The Court ought to send a strong message that such conduct will be penalised.

The conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff’s copyright (s.115(4)(b)(ib) of the Copyright Act)

61. In December 2006, PPCA first wrote to the respondents informing them that the respondents would infringe the Record Companies’ copyright if a licence were not obtained. The conduct of the respondents since that day is relevant to an assessment of additional damages
62. In the period since December 2006, PPCA has contacted the respondents on over 20 occasions. The respondents have never denied that they have been infringing the applicants’ copyright. Instead, the respondents have sought to delay and obfuscate the applicants.
63. From December 2006 until today, Voodoo Clothing continues to operate and publicly play the Record Companies’ sound recordings without a licence.

Whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form (s.115(4)(b)(ii) of the Copyright Act)

64. This factor has no relevance to the circumstances of this case.

Any benefit shown to have accrued to the defendant by reason of the infringement (s.115(4)(b)(iii) of the Copyright Act)

65. The benefit accruing to the respondents here is obvious and substantial. The public performance of sound recordings is used to attract and entertain customers of Voodoo Clothing.
66. By refusing to pay licence fees, Voodoo Clothing has lowered its cost of business and gained a competitive advantage over its competitors who do abide by the law. The result is that law abiding companies are unfairly disadvantaged by the respondents’ conduct.

All other relevant matters (s 115(4)(b)(iv) of the Act)

67. Four additional matters are worth noting. First, if no order for additional damages is made against the respondents, other than legal costs, the respondents will have suffered no real penalty for deliberately refusing to pay licence fees to the applicants over a period of almost three years.
68. Secondly, the respondents have expressed no contrition for refusing to pay licence fees and for putting the applicants and this Court to the expense and time of bringing these proceedings.[58] It is highly likely that the respondents are continuing to infringe the Record Companies’ copyright.
69. Thirdly, PPCA discovered that the respondents were playing sound recordings in late 2006. PPCA has only claimed licence fees from that date. It is very likely that the respondents were playing sound recordings prior to this date without a licence. The lease for the Westfield Penrith store shows that it commenced operation in early or mid 2005.
70. Finally, on 5 March 2010, Azam sent an email to PPCA which appears to be deliberately misleading.[59] That email stated:
    • we are not refusing to pay for the music in our stores and we are happy to pay for each site. However we are only a newly operated management company within the last 12 months. . .we will not be accepting any passed tense usage by old directors or managers.
71. In fact, Jabouri was not a newly operated management company.
    It was registered in 2001. The Westfield Penrith lease entered into in March 2005 with Jabouri provided that Jabouri’s trading name was Voodoo, so Jabouri had been operating Voodoo Clothing stores since at least 2005. Further, that email seeks to blame past conduct of the company on “old directors and managers.” In fact, Azam was a director of Jabouri since 2001 and Omar was a director since 2005.

Damages awarded in other cases

72. While each case must be considered on its merits, it is instructive to consider the range of awards made for additional damages. There is no arithmetic nexus between the level of compensatory damages and additional damages.[60]
73. In Microsoft Corporation v Glostar Pty Ltd [2003] FCA 210; (2003) 57 IPR 518, the Federal Court awarded $291,625 in additional damages. The compensatory damages were $4,375.
74. In Fraserside v Venus Adult Shops [2005] FMCA 997, Raphael FM awarded additional damages in the sum of $85,000 against the respondents. Additional damages would have been $100,000 but were reduced by reason of the applicants’ acquiescence. Conversion damages were awarded in the sum of $65,000.
75. In Zero Tolerance Entertainment Inc & Ors v Venus Adult Shops Pty Ltd and Ors [2007] FMCA 155, Driver FM awarded additional damages of $150,000.
76. In APRA v Cougars Tavern [2008] FMCA 369, Raphael FM awarded additional damages against respondents of amounts between $40,000 and $125,000. Compensatory damages were awarded in the sum of approximately $22,000.
77. In Aristocrat Technologies Australia Pty Limited v D.A.P. Services (Kempsey) Pty Limited (In Liquidation) [2007] FCAFC 40, the Full Court of the Federal Court awarded additional damages of $200,000 with nominal compensatory damages of $1.
78. In Foxtel Management Pty Limited v The Mod Shop Pty Ltd [2007] FCA 463, the Federal Court awarded additional damages of $300,000 against one director and $60,000 against another.
79. In Adelaide City, Raphael FM awarded additional damages in the sum of $85,000. Compensatory damages were awarded in the sum of $48,812.53.
80. In All Girls, Raphael FM awarded additional damages in the sum of $90,000. Compensatory damages were awarded in the sum of about $145,000.

Appropriate additional damages

81. The applicants seek additional damages in the sum of $90,000. That appears to be a very substantial sum, particularly having regard to the fact that the compensatory damages in respect of unpaid licence fees is the amount of $1,844.48. However, there is no necessary link between the amount of compensatory damages awarded and the amount of additional damages that may be awarded. I accept the applicants’ submissions that there has been flagrancy in the infringements of copyright under the Copyright Act and there is a need for deterrence.
82. In the applicants’ submission, the respondents’ conduct is at the highest end of the scale.
83. There are a number of factors which distinguish the respondents as deserving a substantial penalty. First, the respondents’ conduct has been engaged in over a long period of time, despite continuous warnings from PPCA. The respondents have deliberately infringed the Record Companies’ copyright over more than four years.
84. Secondly, the respondents engaged in this conduct over a number of separate locations. The respondents have operated Voodoo Clothing stores in seven separate locations but not paid licence fees with respect to any of the locations. Voodoo Clothing is not a small shopkeeper; it is a substantial commercial operation.
85. The amount of licence fees payable for the public performance of recordings in commercial premises of this type is small. The cost of enforcing compliance with the law can be very substantial. In the absence of additional damages, it is difficult for copyright owners to enforce their rights, including by legal proceedings. I accept the need for an award of additional damages for the purposes of deterring others.
86. Deterrence, of course, may be achieved by the publicity of successful Court proceedings and I have published written reasons that may be used by the applicants in order to send a message to business operators that the payment of licence fees for the public performance of sound recordings in business premises is a matter that needs to be taken seriously.
87. The facts are that the applicants have been in discussion (largely one way) with the respondents over the issue of these licence fees for about four years. It does not appear to me that those discussions were initially taken seriously by the respondents, although in more recent times the seriousness of the issues has sunk in and the respondents, particularly through the agency of Assam Jabouri, have taken more serious attempts to resolve the matter. However, perhaps because the amount of licence fees in issue is small, the respondents have not fully appreciated the potential financial risk to them through non-resolution of the matter.
88. I heard from Mr Assam Jabouri in oral argument today. He referred to discussions between the parties concerning the level of fees and the issue of costs. Those discussions were apparently conducted on a without-prejudice basis and it is not open to me to take into account the particular issues or sums of money that have been discussed. I do take into account that the amount of licence fees for past use ultimately sought by the applicants have been paid. I also take into account that the parties have been in discussion concerning the issue of legal costs, although I do not know the precise details of those discussions.
89. I was referred in argument to two cases which dealt with the issue of additional damages in somewhat similar circumstances. One of those was All Girls. In that case, the sum of $90,000 was awarded by way of additional damages, but it is worth noting that the monetary damages in general in that case were significant. The other case was Adelaide City Entertainment where $85,000 of additional damages were Awarded, which was a lesser figure than that sought by the applicants in that case.
90. In Adelaide City Raphael FM took into account at [14] the flagrancy of the breaches, the fruitless correspondence engaged in over a period of three years and other matters, including the need to set damages at a realistic level that might be paid. I understand that the corporate structure under which the respondents’ business is being conducted is currently the subject of modification. There is a risk that if additional damages are set at an unrealistically high level the respondents will have an incentive either not to pay at all or to reorganise their business structure in such a way that the risk to the underlying business is limited.
91. Having regard to all the circumstances advanced by the applicants and the explanation offered by Mr Assam Jabouri, I have concluded that additional damages in the sum of $30,000 should be paid and I will so order.
92. I will order that the respondents, whether by themselves, their servants, agents or otherwise, be permanently restrained from causing or authorising any of the Identified Infringing Recordings performed in public without the licence of the relevant applicants.
93. Pursuant to s.115(2) of the Copyright Act, the respondents are to pay compensatory damages in the amount of $1,844.48.
94. Pursuant to s.115(4) of the Copyright Act, the respondents are to pay additional damages, fixed in the amount of $30,000.
95. The respondents are to pay the applicant’s costs and disbursements of and incidental to the Application and the Application in a Case, fixed in the sum of $8,200.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 19 October 2011

ATTACHMENT

APPLICANTS

	Phonographic Performance Company of Australia
	!K7 Records
	1989 Pty Ltd
	28 Days Pty Ltd
	3DE
	8 Ball Aitken t/a Phoenix Movement Rec
	A Sharp Recording Studio
	ABC Music
	Acoustic Suede
	Adam Harvey Management Services P/L
	Adams, Clelia
	Afterschool Publishing Company
	AGR Television Records
	Airbourne
	AITP Records
	aJaymusic
	AJO Services
	Akhenaten Music
	Akimbo Records
	Akoustic Odyssey
	All Killer Music
	Allan, Jane
	Allen, Ian .B.
	Aloha Management Pty Ltd
	Alter Ego Promotions
	Amber Records Aust. Pty Ltd.
	Amphibian
	An Ocean Awaits Records Pty Ltd
	Anamoe Productions
	Andermer P.L.
	Andreson, Gavan t/a Tara Hall Productions
	Ang Fang Industries
	Angelik
	Angell, Matt
	Anthem Pty Ltd
	Anvil Lane Records
	Anvil Records
	Apertif Records Pty Ltd
	Appelkamp, Paul
	Archer, Matthew
	Architecture Label P/L
	Armchair Circus Music
	Arnold, Caitlin Marissa
	Art Vs Science Pty Ltd
	Artistocrat P/L
	Arvidson, Daniel
	Ascension World Music Productions House
	Ashcroft, Gay Ellen
	Attar, Lior
	Aquagirl Music and Business
	Audible Sounds Pty Ltd
	August Way
	Auld-Mezera, Audrey
	Aymsilver P/L
	Backtrack Music
	Bad Taste Records
	Baeffel, Daniel
	Baillie, Victoria
	Baker, Brian
	BamBam Muzik International
	Barroso, Jose
	Basement Birds Pty Ltd
	Basin Records
	Bass Industry Australia
	Beatitudes CBS
	Bell, Alistair
	Bellbird Music Pty Ltd
	Bernasconi, Justin
	Berry, Michael
	Betteridge, Ian
	Beyond The Sea Pty Ltd t/a Hot Records
	Bich Touring Enterprises
	Big Love Productions
	Big Scary Music
	Big Strum
	Billing, Peter
	Binnaburra Film Co P/L
	Birds Of Tokyo Pty Ltd
	Bittersuite
	Black Door Records
	Black Market Music
	Black Yak P/L
	Blank Vault Productions Pty Ltd
	Bleicher, Airom
	Blindman’s Holiday
	Bloodpuppies Pty Ltd
	Blue Bandicoot
	Blue Pie Productions Pty Ltd
	Blue Tiger Music Pty Ltd
	Blues Vibes Music
	bluejuice Music Group Pty Ltd
	Bluesville Records
	BNM Records
	Boggia, Monique
	Bolton, Aaron Brian
	Bone Daddy Records
	Bonefinger Records
	Bonnie Jensen & Associates
	Boomtown Records
	Bordello
	Boukabou, Jamel
	Bowditch, Clare
	Bowles Production
	Bradley, Lou
	Brandeluxe
	Breaking Records
	Breese, Rob
	Brewer, Dave
	Brian Lord Entertainment
	Bridge, Billy
	Bright, Gillian
	Broadfoot, Matthew
	Broadie, Karl
	Brown, Quentin
	Bruce, Alana
	Bubblewrap Records Pty Ltd
	Buckle Up Entertainment Pty Ltd
	Buckley, Russell
	Bullbar P/L
	Bulletproof Records t/a Fighterpilot
	Bulmer, Grant Matthew
	Bun’ Ber E
	Bunza Entertainment International Pty Ltd
	Burdett, Felicity
	Burke, Matthew David
	Burke Pounder Productions
	Bryce, Thomas
	Byrne, Christopher James
	Byrne, Craig
	Byrne, Janine
	C.H. Records
	CAAMA Music
	Campbell, Kym
	Cameron Bracken Concepts
	Candice Alley Pty Ltd
	Canteri, Cathryna
	Canvas Music
	Cardy, Michael
	Carleo-Smith, Rose-Marie
	Caruana, Danielle t/a Mama Kin
	Caseley, Joanna
	Casual Projects
	Casual Workout Pty Ltd t/a Architecture in Helinski
	Cauliflower, Samantha
	Caruana, Luke A.
	Celtic Records
	Charles, Barry
	Charlie Chan Music Pty Ltd
	Charman, Philip Martin
	Chart Records and Publishing
	Chase Corporation P/L
	Chase The Sun Band
	Chatterbox Artists
	Chatterbox Records P/L
	Cheshire, Kim
	Chester, John
	Chicks Who Love Guns
	Cilia, Martin
	Circle Records
	Clan Analogue Recordings Inc
	Clarke, Caroline Frances
	Clarke, Wade
	Clifton, Jane
	Coco’s Lunch
	Cognoscenti Entertainment Pty Ltd
	Coleman, Kathleen
	Collins, Andrew James
	Colossal Records of Australia Pty Ltd
	Compass Bros Records Pty Ltd
	Cooper, Daniel
	Cooper, Jacki
	Corbett, Robert
	Corcoran, Dianna
	Corlett-McDonald, Nina
	Costa, Paul
	Coulson, Greg
	Cox, Kristy
	Craig Law Productions t/a Cllaw
	Creation In Trance
	Creative Vibes
	Crestani, Nattasha
	Crestway Music
	CrimInAll Records
	Crisp, Brian Clinton Field t/a Vectis Media Services 13 Brinsmead Road
	Croome, Helen
	Cross-Word Music Pty Ltd
	Crusade Records
	Cunningham, Leigh
	Cutters Records Pty Ltd
	D Boyd Pty Ltd
	Da Capo Singers
	Dallas, Rex
	Damien Gerard Sound Studios P/L
	Darke, Victoria Louise
	Dark Order
	Das Kong Pty Ltd
	Davidson Brothers
	Davies, Leif Bryan
	Davis, Emily
	Dawson, Trevor Harold
	Dax Music Pty Ltd t/a Central Station Records
	De Valence, Francesca
	Dead Letter Circus
	Deep Pearl Records
	Delta Groove
	Den Elzen, Michael
	Derwent, Warren
	Deutsch, Adrian
	Dex Audio Pty Limited
	Di Renzo, Mark Charles
	Di Renzo, Paul Joseph
	Dirt Diamonds Productions t/a Shabbey Road
	Dirty Laundry
	DLF Productions Pty Ltd t/a Odessa Mama Records
	DNA Songs
	Donna Fisk & Michael Cristian
	Downey, Nicholas
	Dowsett, Rodney
	Doyle, Steve t/a The Control Room
	Dream Dealers Pty Ltd
	Dukebox Music t/a Dukes of Windsor
	Ease From Absence
	Eastman Group Pty Ltd
	Easton, Mark Gregory
	Easypeasy Music
	EB Music Productions Australia
	Echidna Music Management Pty Ltd
	Eckhardt, Tiffany
	Effectz Recording
	Electron
	Elektra Productions
	Elengy Music
	Eleven: A Music Company
	Elix, Dwayne
	Emanon Records
	EMI Music (Australia) Pty Limited
	Emu Music Australia Inc.
	Endgame Records
	Endorphin
	Epicure
	Episode Productions
	Esposito, Leonardo
	Estepa, Bryan
	Etch N’ Sketch Records Pty Ltd
	etypejazz
	Euphonious Management
	Evergreen Entertainment
	Extraordinary Entertainment
	Faehse, Tony
	Family Music Pty Ltd
	Farquhar, Stephen
	Fashion Victim Records
	Fein, Michael
	Felicity’s Entertainment
	Feral Media Pty Ltd
	Finnie, Scot Warner
	Fintage Publishing + Collection BV
	Fiorello, Adam
	Fisk-Peake, Joshua
	FK Music Pty Ltd
	Flashpoint Music P/L
	Flew, Shane Gregory
	Flightless Birds Ltd
	Floating Point Music
	Floyd Vincent and the Childbrides
	Follington, Adrian
	Foran, Sean
	Forola Music
	Forum 5 Pty Ltd
	Foster, Levi
	Fourth Floor Collapse
	Frankenbok
	Framur Holdings Pty Ltd
	Freedom Endeavours Pty Ltd t/a Beautiful Soul Music
	Freetown
	Fresh Fish Records
	Fret Music
	Frilanded Pty Ltd
	Frisina, Adrian
	Frontal Lobe Productions
	Fruit Music
	Full Circle Music
	Fuse Music Group P/L
	Galeazzi, Michael t/a Dharma Records
	Gallagher, Brendan
	Gajang Productions
	GANGgajang
	Gannon, John Martin
	Garfoot, Katie Brianna
	Gatfield, Andrew
	George Music Pty Ltd
	Geri, Janette
	Germain, Jane
	Gidgee Records
	Giles, Craig
	Gillon, Andrew
	Girle Publishing
	Glenample Music Publishers
	Glencoe Records
	Global Boost Music
	Global Recordings Pty Ltd
	GM Entertainment
	Gobsmacked Television Pty Ltd t/a Gobsmacked Music
	Gomma/Helmschrott-Imbrey GbR
	Goodridge, Lara & Howard, Joy
	Goodwin, Brett
	Gore, Jason
	Goris, Greg
	Gracemusic P/L
	Grand Atlantic Industries Pty Ltd
	Grandview Records
	Gray, Errol
	Greatorix, Colin Spencer
	Griffin Music
	Griffin, Joanne
	Griffith, David t/a Saucepan Bach
	Griffith, Jennifer
	Grindin’ Pty Ltd
	Guinlee Music
	Gunn Records
	Guy, Clifford William
	Half A Cow Records
	Hamilton, Katrina Louise
	Hamilton, Mick
	Handley, Mathew Kirk
	Hanlon, Darren
	Hardrush Music Corporation Limited
	Hardy, Anita
	Harmonious Resonance
	Harnett, Caitlin
	Harrison, Andrew
	Harton Bridge P/L t/a Rain the Original Band
	Hawkins, Fiona Joy t/a Little Hartley Music
	Hayshed Productions / Hayshed Studios
	Head Records
	Heatlie, Shane t/a Chalk Music
	Heifer
	Hell City Glamours
	Hemia Pty Ltd t/a Hammered Silver Records
	Hillsong Music Australia
	Hilltop Hoods Pty Ltd
	Hindley Records
	Hobbledehoy Record Co
	Holden, Marcus Peter
	Hole, David
	Holstein, Justin
	Honeyface
	Hooch Hound Records
	Hoop Music Pty Ltd
	Hooper, Dale
	Hope, Ross Andrew
	Hopkins, Sarah
	Horne, Craig
	Horsburgh Enterprises Pty Ltd
	Horsphol, Michael
	Hotsource.Com.Au
	House Of Wow!
	Hughan, Paul
	Human Interests P/L
	Humber Records
	Humble Productions
	Humphris, Darrel Anthony
	Hurley, Jade
	Hyams, David
	I Oh You Music
	IC. Zed Records
	Identity Records
	Ikinger, Penelope Jane
	Illegadl Cargo Records
	Illict Records
	Inertia Pty Ltd
	International Royalties Rescue
	Island Home Music
	J.A.M. Records
	Jackson, Mark
	James, Harmony
	James, Robert
	Java Entertainment
	Jayarajan, Praveen t/a Infamous Light Recordings
	Jaynie Records
	JBD Productions
	Jdog Universe Pty Ltd t/a Jdog Records)
	Jellyfish Music (International)
	Jensen, Hayley
	John Harley Weston
	Johnstone, Josh
	Jolly Beggarmen
	Jones, Lachlan Michael
	Jordan, Toni
	Juke Kartel
	Jupiter 2 Records
	Just Jase Entertainment
	JWM Pty Ltd
	Karen Lynne Music
	Karma County Productions
	Karvin Records
	Kavanagh, Shane Andrew
	Kay, Daniel
	Kaylah Anne Country Music
	Kellaway, Jane Maree
	Kelly Hope Entertainment Pty Ltd
	Kelt
	Kemp, Jason George
	Kemp, Thalia Lousie t/a Radio Caroline South
	Kennedy - McCracken, Caroline
	Kettle, Kathleen J
	Kettle, William R
	Key Country
	Kids At Risk
	Kiko Records
	Killcrushdestroy
	Kilpatrick, Christy
	Kimberley, Matthew Graham
	King, Brian
	King Blank Recordings Pty Ltd
	King Hokum Records Pty Ltd
	Kittygroove Productions Pty Ltd
	KM Music
	Knievel
	KNL Records
	Knox, Buddy
	Koch, Tim
	Komar, Rochelle Vincete
	Koo, Terence
	Koster, Rachel
	Koszolko, Martin
	Kotadama Trust
	Kot, Jesse
	Krill Records Pty Ltd
	Krow Pie
	Kunsthaus Records
	Kurly Queen
	Kyle
	KZ5
	La Brava Music
	La La Entertainment
	Labjacd
	Laidler, John
	Landale Music
	Lane, David Benjamin
	Lane, Jordie
	Lane, Lilith t/a Swift Sonic Enterprises
	Last House On The Left
	Last Match Recordings
	Lastelle Music Pty Ltd
	Lastdrager, Robert
	Latham, Fiona
	Launch Records Pty Ltd
	Lawrence, Amber
	Lazy Susan
	LBS Records
	Lee, Jason
	Lee-Archer, Tom
	Level Two Music
	Levity
	Liberated Artists
	Liberation Music
	Lieberman, Miriam
	Lighthouse Beach Records
	Lindene Music Pty Ltd
	Lions Share Recordings
	Lipsync Records
	Little, Genevieve
	Little Black Book
	littlebliss records
	Live Performance Publishing Pty Ltd
	Lloyd, Rebecca Anne
	LNG Music Pty Ltd
	Lock, Grainger Keith
	Lomas, David
	Longstaff, Rob
	Louwerse, Mirusia
	Love, Karlin Greenstreet
	Love Bite Records
	Love Is My Velocity
	Love Outside Andromeda
	Love Police Records and Tapes Pty Ltd
	Luluc
	Lush, Kate
	Lusher, Dean
	Luxury
	M.J. Wood Recordings
	MacPherson, Tim Jay
	Madison Square Gardens Pty Ltd
	Magic Dirt P/L
	Maher, Leticia
	Mai-songs music
	Mainsbridge, Mary Michelle
	Majellan Investments Pty Ltd
	Maiorana, Sandra
	Major Music
	Manjaro Music
	Manning, Dean t/a Cloudy But Fine
	Mannix Music Pty Ltd
	Marcato
	Margaritaville Nominees t/a Bombora Creative
	Mark Lucas t/a Songsmith Management
	Mark Pope Music
	Marli Music Pty Ltd
	Marlin Records Pty Ltd
	Marshall, Andrew
	Marshall, Jacqueline Louise
	Mason. Keith
	Martinez, Melissha
	Master, Omid t/a Eagle
	Masters, Gerard
	Mat Recordings
	Matthews, Gerald
	Max Lorenzin Pty Ltd
	Mazzerah Records
	McArtney, Tim
	McCarthy, John Gerard
	McCormack, Ricky Noel
	McCracken, Peter Richard
	McCue, Mark
	McDermott, Dallas John
	McDonald, Craig
	McDonald, Kieron
	McDonald, William Marcus
	McGuiness, Lucian
	McInnes, Nereeda
	McKenna, Tess
	McMaster, Ben
	McMenamin, Fleur
	MDP Touring Pty Ltd
	Medici Studios P/L
	Meier, Bianca
	Melba Recordings Pty Ltd
	Menyweather, Steven James
	Metamorphis Marketing
	Michael, Barry
	Michael Gant Entertainment
	Middleton, Lucille
	Midnight Juggernauts Pty Ltd
	Midnight Records Pty Limited
	Mighty Records Pty Ltd
	Milefire Management P/L t/a Casadeldisco RecordsPO Box 1143
	Miller-Heidke, Kate
	Millington, Colin
	Minimum Chips P/L
	Ministry Of Sound Australia Pty Ltd
	Minson, Lawrie
	Misinterprotato
	Mitchell, Benjamin Grant
	Mixmasters Records
	Modern Music Pty Ltd
	Modern Soul Pty Ltd
	Molly Molotov Booby Trap Productions
	Mondo Rock Band
	Montgomery, Maree
	Morris, Andrew
	Moss-Wellington, Wyatt
	Mountain Made Music
	Move Records
	Moylan, Peter John Dinesh t/a Dinesh Moylan – Sea Eagle Records PO Box 5059
	Muir, Ian
	Mummy’s Boy Records
	Mundy, Chris
	Murphy, John
	Music For Advertising
	Musical Feat
	Musigal Pty Ltd
	Namesoft Computer & Music Services Pty Ltd24 Lithgow Street
	Nanna’s Cane
	National Junk Band
	Nature Sound
	Naughty Mouse Ink Pty Ltd
	Naycoda Pty Ltd
	New Buffalo
	New Galaxy Records
	Newton, Leigh
	Nicholson, Lorin
	Nick And Lisesl
	Nicki Gillis Pty Ltd
	Noble Nobull Productions Pty Ltd
	Noonan, Katie
	Novosel, Jakov
	O’Brien, Catherine
	O’Rourke, Jet
	Ocean Road Music
	Oceans Baroque
	Okell, Marshall
	Olsen, Jamie
	One Way Frequency
	Onelove Recordings Pty Ltd
	Ong,Yunyu
	Onique Pty Ltd t/a Celestial Cow Records
	Onya Soapbox Pty Ltd
	Oracle Records
	Oridio Productions
	Origin Recordings
	Original Music T/a Original Works
	Other Tongues Pty Ltd
	Ousha Records
	Out Of Nowhere
	Owen Lockett Enterprises
	Ozstar Music
	Palomarr Pty Ltd
	Pandamonium Records
	Parisi, Tommaso t/a Tom Ugly
	Parker, Tash
	Parlane, Brent Richmond
	Parsons, Dan
	Patsalides, George
	pb ZAAb
	Peak Records
	Pell, Anthony
	Pengilly, Mark
	Pennywise Emterprises Pty Ltd
	Performance Industry Pty Ltd
	Pete Murray Recording
	Peters, Stewart
	Petrol Electric Records Pty Ltd
	Phantom Music P/L
	Pharmacy Records
	Philadelphia Grand Jury
	Phonographic Performance Limited
	(sound recordings only)
	Pickering, Chris
	Pinewood Records & Promotions
	Pistol Records t/a Petrol Records
	Pita, Nadene
	Plus One Records
	Polytainment P/L t/a Polytainment Records
	Pondaro Pty Ltd
	Power, Jayne-Anne
	Powerpoint Music
	Powderworks Records
	Pratt, Peter Ronald
	Prawn and Spanner Records
	Private Practice Pty Ltd
	Project Mayhem
	Public Domain Records
	Pugh, Mistin Renee
	Puñal, Nicolas Anthony
	Puppet
	Pursell, Matthew Giles
	Pyke, Joshua Jon
	Qstik
	Quinn, Simone
	Rachelle Productions Pty Ltd
	Rage 8
	Randall – Blair + The Wedded Bliss
	Ravin Records
	Raw Entertainment
	RCB Recordings Australia
	Rebza Productions
	Red Cat Sounds Pty Ltd
	Red Dirt Music
	Red Jezebel
	Red Rebel Music
	Red Recordings
	Reflekta Records
	Regal Records
	Regency Media Pty Ltd t/a Shock Entertainment
	Remote Control Records P/L
	Rendition Records
	REVEALmusix Ltd
	Rex Morgan Records
	Rezzalp
	Rhythm Drop Records
	Rhythmscape Publishing Australia
	Ride A Wave Productions
	Ridin’ High Records
	Rieniets, Andrea
	Right Now Records
	Rigid Records
	Rivero, Helen
	Rivers, Ronni Rae
	Riverview Media Inc.
	RMS Productions Pty Ltd t/a Right On Records
	Roadrunner Records (Australasia) Pty Ltd
	Roadshow Films Pty Ltd t/a Roadshow Music
	Rob Severini Productions (RSP)
	Roberts, Toby
	Robertson, Melissa
	Rockola Music
	RockSugar Music Pty Ltd
	Rocwater
	Romig, Jessica Paige
	Rodeo Downunder
	Rose Entertainment
	Rose, Tania t/a Artscope Music and Management
	Roy, Kelvin
	Rubber Music Pty Ltd
	Rufus Records
	Russell Harris Entertainment P/L
	Ryjo Records Pty Ltd
	Safi, Radi
	Sahara Music
	Saliba, Saba
	Salisbury, David
	Samples ‘n’ Seconds Records Pty Ltd
	Samplifier Music
	Sandcastle Music Pty Ltd
	Sandrini, Douglas Steven
	Sarakula, Joel
	Scarboro Music Production
	Scales, Gisele
	Schneider, Rita
	Screensong Pty Limited
	Secret Fox Pty Ltd t/a Skipping Girl Vinegar
	Select Audio-Visual Distribution Company
	Selection Records
	Sensory Projects
	Serrano, Oscar
	Session Records Pty Ltd
	Sharman, Leonard t/a Firefly Soul Music
	Sharrinovsky, Serge
	Shearston, Gary
	Sheer Music Pty Ltd
	Sheppard, Jeff
	Shoestring Productions
	Showman Records
	Shiny Entertainment Pty Ltd
	Shivana Music
	Simon Lewis Productions Pty Ltd
	Simmonds, Aleyce
	Skeates, Toby
	Skinny Fish Music
	Small House Records
	Smash Music Pty Ltd
	Smith, Derek
	Snape, Anthony
	Snarski, Robert
	Sokaris Music
	Solo, Michael
	Song Cycles Pty Ltd
	Song Dynasty
	Songline Management
	Sony Music Entertainment Australia Pty Ltd
	Sound Design Pty Ltd t/a Tone Freak Records
	Sounds For Space Recordings
	Space Like Alice
	Spaced Out Sounds
	Sparks, Jessie
	Speak N’ Spell Records Pty Ltd
	Speak N’ Spell Touring Pty Ltd
	Spinstyle Records
	Spirit Of Play Productions Pty Ltd
	Spiteri, Cristy
	Split Records
	SRP
	Stafford Brothers
	Stanley, Michael
	Starlite Records
	Stereolife Records
	Sterry, David
	Stewart, Kenneth J
	Stewart, Tamara
	Steward, Timothy John
	Stewart, W.A. & P.
	STO Management Group t/a KH Management
	Stomp Pty Ltd
	Stone, David
	Stone Parade
	Storm Front P/L
	Stormfront Productions
	Stratum Management
	Street, Sally
	Strinesong Pty Ltd
	Stringmansassy Pty Ltd
	Suade Voices
	Sub Conscious Records
	Sub Continental Dub
	Subsonic Records
	Subterranean Records
	Suffargette Music
	Sugarrush / Soi Records
	Sundown Music
	Sunwrae
	Super Massive
	Superengine
	Supersede Music
	Suresh Music
	Sureshaker Music
	SW Songs and Publishing
	Swaggie Records
	Sweat It Out! Pty Ltd
	Swordtail Records
	Sydonia Music
	Szabo, Luke
	Table Music Ltd
	Tabbita Record Company
	Takats, Ange
	Tall Poppies Foundation t/a Tall Poppies Records
	Tamworth Music
	Tanch Event Management
	Tantrum Records
	Tania Kernaghan Productions P/L t/a KCR P/L (address withheld by request)
	Teacup Music
	The Black Stars
	The Blackeyed Susans
	The Boat People
	The Camels
	The Chaperones
	The Dead Abigails
	The Disables
	The Drop Ltd.
	The Flamin Locos
	The Glass Corporation
	The Hanging Tree
	The Jade Diary
	The Little Label
	The Little Stevies
	The Monkey Face
	The Museagency
	The Necks
	The New Invincibles
	The Panama Music Company Pty Ltd
	The Panda Band
	The Paradise Motel
	The Prophet Productions
	The Resignators
	The Restless
	The Saruzu Quartet
	The Sign
	The Ska Sound System
	The Spot Community Services Ltd t/a Starving Kids Records
	The Tenants Music
	The Three Basics
	The Valentines Music Group Pty Ltd
	The Vans
	The View From Madeleine’s Couch
	The Vignettes Music & Touring
	The Yearlings
	This Heaven Productions
	Thomas, Amanda
	Thomas, Yolanda
	Three Little Fish
	Tickler Records
	Timothy Madden - Studio Two Twelve
	ToCo Australia Pty Ltd
	Tonemarket
	Toni Janke Productions
	Tony Johns Entertainment
	Toohey, Ryan
	Toskas, Marinas
	Toupee Records
	Trailblazer Records
	Transini, Robert
	Transistor Music Australia Pty Ltd
	Translator Records
	Transmitter Records
	Treacle Line
	Trevena, Lee Robert
	Trickster Music
	Trifekta Records
	Triple Seven Records
	True Blues Pty Ltd
	Trycycle Recordings
	TSJ Records
	Turner, Lee
	Turtle Tracks Pty Ltd
	Tweedie, Jillian Frances
	Twelve Dollar Monkey
	Tygergirl Productions
	Tyson, Stuart James
	Undercover Music Pty Ltd
	Underfoot Records Pty Ltd
	Unidisc Music Inc
	United Music Entertainment Pty Ltd
	United World Artists
	Universal Music Australia
	Urban Guerillas Popular Music
	V & H Holdings
	V G Promotions
	Vacation Records Pty Ltd
	Vaguemusic
	Valve Records
	Vann, Hank
	Varro, Aiden
	Vassella, Luke
	Veivers, Andrew
	Very Unique Existence
	Vicious Pty Ltd
	Victoire, Anousha
	Vinci, Terrence Joseph
	Visoiu, Zoe
	Vital Entertainment Solutions Pty Ltd
	Vitamin Records
	Vlasak, Michelle Christina
	Volcanic Activity
	Vuletic, Jennifer
	Walker, Dave
	Walking Horse
	Wallis, John
	Walmsley, Raelene Harley Mary
	Ware, Bronnie
	Warner Music Australia
	Warp Records Limited
	Warrior Girl Music
	Wayward Music
	WDO Music
	Webb, Daniel
	Westlink Multimedia t/a Embryo Records
	Whack Recordings Pty Ltd
	Wicked Beat Records
	Wijesingha, Sheyana
	Williamson, Peter
	Willems, Bryen
	Willow Publishing Pty Ltd
	Wills, Stephen t/a Azure Image
	Wilson, Rob
	Winn, Jason
	Winn, Paul
	Wiseman, Bryan
	Wishing Well
	Wolse, Eric
	Woodley, Benedict Lionel
	Wow Records
	Wu Wei
	Xobophon Records
	Yamaguchi, Satoru
	Yarrow, Mitchell Jay
	Yes Yes Records Pty Ltd
	Young Werther
	Zeptepi
	Zia Records
	Zmak, Anotny

---

[1] Affidavit of Lynne Small, sworn 3 June 2011, (Small), exhibit LS1 (LS1), p75.
[2] LS1, page 75.
[3] Small, [31].
[4] Small, [44].
[5] Small, [19].
[6] Affidavit of Anna Killick, 26 August 2011, (Killick Affidavit), [11].
[7] Apart from the document referred to at [12] above.
[8] Small, [34]-[37].
[9] These presumptions have been applied in a number of cases including Universal Music v Hendy Petroleum [2003] FMCA 373 at [5]; Microsoft Corporation v Goodview Electronics (2000) 49 IPR at 584 per Branson J.
[10] Small, [34] and [35].
[11] Small, [44] and [47].
[12] Small, [46].
[13] Small, [31].
[14] Small, [30].
[15] Small, [46].
[16] Small, [31].
[17] Small, [47].
[18] Small, Exhibit LS1, page 72.
[19] Small, [44] and [47].
[20] Small, [51].
[21] Small, [52].
[22] Affidavit of Mr Marcinec.
[23] Small, LS1, page 118.
[24] Affidavit of Ms Palmiotto.
[25] Small, [32].
[26] Small, LSI, page 75.
[27] Small, LS1, page 75.
[28] Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd [1990] 1 Qd R 231 at 258 per Thomas J (authorisation); Australasian Performing Rights Association Ltd v Jain (1990) 26 FCR 53 per Sheppard, Foster and Hill JJ (authorisation (joint tortfeasor submissions referred to but not considered)); Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135 per Stone J (authorisation at [74] and joint tortfeasor at [78]); Australasian Performing Rights Association Ltd v Metro on George Pty Ltd and Others [2004] FCA 1123; (2004) 61 IPR 575 at 594 per Bennett J (authorisation and joint tortfeasor at [80]); Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443 per Merkel J (authorisation and joint tortfeasor at 463-5); Fraserside Holdings v Venus Adult Shops [2005] FMCA 997 at [31] per Raphael FM.
[29] Small, LS1, pages 90-99.
[30] Small, LS1, pages 103-104.
[31] Small, LSI, pages 107-111.
[32] Small, LS1, pages 112-113.
[33] Small, LS1, page 114.
[34] Small, [61]-[63].
[35] Small, LS1, page 115.
[36] Small, [65].
[37] Small, LS1, pages 116-117.
[38] Small, LS1, page 118.
[39] Small, LS1, pages 119-121.
[40] Small, LS1, page 122.
[41] Small, LS1, page 123.
[42] Small, LS1, pages 124-128;
[43] Small, LS1, pages 129-130.
[44] Small, LS1, pages 131-132.
[45] Small, LS1, pages 133-135.
[46] Small, LS1, pages 136-138.
[47] Australasian Performing Rights Association Ltd v Jain (1990) 26 FCR 53 at 61.
[48] Microsoft Corporation v Goodview Electronics (2000) 49 IPR at [66-67] per Branson J.
[49] Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR 69 at 75 per Wilcox J; Microsoft Corporation v Goodview Electronics (2000) 49 IPR at [55] per Branson J. See also: Grebo Meters Ltd v Metropolitan Gas Meters Ltd (1911) 28 RPC 157; Stovin-Bradford v Volpoint Properties Ltd [1971] 1 Ch 1007; General Tire and Rubber Co v Firestone Tyre and Rubber Co Ltd [1975] 1 FSR 273; [1976] RPC 197; Hunter v Fitzroy Robinson and Partners [1978] 4 FSR 167.
[50] Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR 69 at 75 per Wilcox J; Microsoft Corporation v Goodview Electronics (2000) 49 IPR at [55] per Branson J.
[51] Small, [21].
[52] Small, [21].
[53] Small, LS1, pages 58-63.
[54] Autodesk Inc v Yee (1996) 68 FCR 391 at 394; Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 at 92 per Burchett J.
[55] Raben Footwear Pty Ltd v Polygram Records Inc & Anor (1997) 145 ALR 1 at 6.
[56] Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR at 76 per Wilcox J; Ravenscroft v Herbert and New English Library [1980] RPC 193 at 208
[57] Copyright Amendment (Parallel Importation) Bill 2003. Supplementary Explanatory Memorandum (Cth).
[58] Expression of regret was considered relevant in Universal Music Australia Pty Ltd v Miyamoto [2004] FCA 982.
[59] Small, LS1, p118.
[60] Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88.