Copyright infringement is bad behaviour. But here’s a story that reminds us that even when it happens, it’s not automatically flagrant to the tune of millions of dollars in additional damages.
But first, a hilarious reminder about what is flagrant. You need to picture Australian miner-cum-politician Clive Palmer (see photo – sorry). You need to let the tune of Twisted Sister’s “We’re not gonna take it” permeate your mind (sorry again). And you need to accept that this was Mr Palmer’s evidence, given on oath (no apologies this time – you’re welcome):
“While deep in contemplation, I wrote the words for ‘Aussies Ain’t Gonna Cop It’; that is, the words:
‘Australia ain’t gonna cop it;
No Australia’s not gonna cop it;
Aussies not gonna cop it, anymore.’”
While remaining in a state of deep contemplation, let’s contrast that to what happened in the Full Court of the Federal Court of Australia just yesterday.
What happened?
The Full Court delivered judgment in a long-running dispute between two competitors in the residential lifts market. It’s always the copyright owners you least expect. The applicant alleged that the respondents had infringed its copyright and misused confidential information, seeking additional damages under the Copyright Act for flagrancy and extra relief for breach of confidence.
The proceedings followed an earlier partial success for the applicant, with the respondents admitting to copyright infringement but contesting liability for additional damages and breach of confidence. The appeal was about whether the primary judge erred in denying additional damages, in her assessment of the flagrancy of the respondents’ conduct, and in rejecting claims of breach of confidence relating to the contents of a customer quotation.
Who won and why?
The respondents prevailed. The Full Court initially granted leave to appeal but ultimately dismissed it, ordering the applicant to pay the respondents’ costs.
On flagrancy, the Court found no error in the primary judge’s approach. The conduct in question was the deliberate copying of a quotation. Yep, a literary work in which copyright subsists, just like Pride and Prejudice. The infringement was an infringement, but it was found to be short-lived, lacking in scandalous or egregious features and not sufficiently flagrant to warrant additional damages.
The respondents’ initial denials of infringement were also considered in the context of aggressive and threatening communications from the applicant. Additional damages are a discretionary remedy, and the Court found the applicant’s overall character of its conduct to be relevant. Flagrant demands?
On breach of confidence, the Court held that the applicant failed to identify with sufficient specificity the confidential information at issue. The customer quotation relied upon was publicly available on a website, and the mere marking of “Commercial-In-Confidence” in small print was insufficient to impose an obligation of confidentiality. The Court also rejected claims relating to alleged misuse of internal documents and information accessed by a former employee, finding no evidence of actual misuse or breach of confidence.
Take-home points
- The assessment of flagrancy under s 115(4) of the Copyright Act is a matter of degree and context, not a binary determination. We’re looking for really bad behaviour from an infringer that’s at the expense of a well-behaved copyright owner.
- For breach of confidence claims, parties must identify the confidential information with precision and demonstrate its confidential nature; information publicly available or routinely shared in the industry is unlikely to be protected.
- Aggressive conduct by a claimant may be relevant to the assessment of a respondent’s post-infringement behaviour.
For those interested, the case citation is Lift Shop Pty Ltd v Next Level Elevators Pty Ltd [2025] FCAFC 108
Non-flagrant photo credit of Clive, which has not been changed: Jwmcdonald81, CC BY-SA 4.0 https://creativecommons.org/licenses/by-sa/4.0, via Wikimedia Commons
