Archive for September, 2011

Still hating Kde4/cups

Still hating Kde4/cups

Overall KDE4 doesn’t limit my working overly compared to KDE 3.5 (although, so far as I can remember, it doesn’t improve it).  One area where it particularly falls down is in printing.  I have remarked earlier on the absence of kprinter.

One consequence is that it is quite difficult to print to a pdf from an application (in particular MS Word running from crossover) which, previously, was a breeze with kprinter.  The practical consequence is that I can’t print a document with colours in it as b/w on my (admittedly brain damaged, since it doesn’t allow forcing b/w only mode and therefore probably wastes colour toner) Samsung colour printer.   If necessary I could do this by printing to pdf, then using the print greyscale option on the pdf reader.

Not any more.  Printing to pdf is not supported by cups out of the box (forever why not?) although apparently cups-pdf will allow this.  Now I have to hunt for cups-pdf.  Tch!

The absence of kprinter from kde4 is a major major pain such that KDE4 is still a net negative for me compared to KDE3.5.

Edit 28/9/11: cups-pdf installation was comparatively easy.  Noticed some print dialogs for my samsung do have a grayscale option, while others don’t.  cups-pdf dumps to a spool directory.  With kprinter I always printed to the same file print.pdf so I could (eg) include a link to it.  Not sure if cups-pdf allows this (seems to calculate output name based on input name).

Edit: See my “Back to the Future” solution here.

Online gamers crack enzyme riddle – Who gets the patent?

Online gamers crack enzyme riddle – Who gets the patent?

The ABC Reports:

Online gamers have achieved a feat beyond the realm of Second Life or World of Warcraft: they have deciphered the structure of an enzyme of an AIDS-like virus that had thwarted scientists for a decade.

So, who gets to lodge the patent on this?

Rogue Traders

Rogue Traders

Why would you go to the trouble of hijacking stuff when you could just plant rogue traders in major banks?

CBS Songs v Amstrad

CBS Songs v Amstrad

“Without the facilities provided by the electronic equipment industry, the entertainment industry could not provide entertainment in the home, and could not, for example, maintain orchestras which fill the air with 20th century cacophony or make gratifying profit from a recording of a group without a voice singing a song without a tune.”

per Lord Templeman in CBS Songs Limited v Amstrad [1986] FSR 159 delivering the unanimous judgment of their Lordships.

Something Important Happening in iiNet Case

Something Important Happening in iiNet Case

There’s something important going to happen in the iiNet case in the near future.  I don’t know exactly what.  I’m simply noting that whenever something has happened in the past it’s been accompanied by an anti-piracy campaign.  The campaign has apparently begun with this puff piece in the Australian, complete with a survey of people saying they’d stop infringing if their ISP asked them to.

We should therefore expect to see something on iiNet soon as well.

iiNet: Authorisation and the Nature of the Relationship under 101(1A)(b)

iiNet, Authorisation and the Nature of the Relationship under 101(1A)(b)

Exposure draft for comment 6 September 2011.


The Full Court’s analysis of section 101(1A)(b) in iiNet is difficult to align with the words of the section.  That analysis ignores the relationships considered in existing case law.  The analysis does not allow an explanation of previous cases, inconsistently with the proposition that section 101(1A) codifies existing law.

Section 101(1A)(b) requires that the primary infringer be identified.  If they are not identified, it is not possible for the court to consider the nature of any relationship between them and the alleged infringer.  As the court has no discretion to ignore this consideration, a court ought not find authorization.


Imagine you are attending at a concert and standing next to another apparent concert goer who was making a video recording of the live performance.   You notice that the person is wearing a  T-shirt which reads “I am infringing copyright by making a reproduction of this performance”.  Would section 101(1A) make you an infringer? Surely you have a “power” to do something (you could stand in front of or otherwise obstruct the lens) and a “relationship” with the person doing the act (the relationship being that you are standing beside them).  If you did nothing would your indifference reach such a degree as to amount to an authorization?  I think it ought not to, and it ought not to based on what the words “the nature of any relationship” in section 101(1A)(b).  In this post I make some comments on the interpretation of section 101(1A)(b), primarily in the context of the Full Court’s decision in iiNet.

Are the section 101(1A) paragraphs mandatory?

Based on the requirement that certain matters “must be taken into account” by a court in determining whether an authorization has occurred, the court at first instance was criticised for not giving section 101(1A) pride of place in the analysis of authorization.  In effect, the trial judge’s approach was argued to be presupposing the outcome of the section 101(1A) consideration:

The unavoidable inference is that the trial judge considered the matters specified by s 101(1A) of the Copyright Act (that is, in determining whether or not a person has authorised any act comprised in a copyright) within and by reference to the conclusion already reached (that iiNet had not authorised the infringements of copyright) and as a result of applying a test not specified by the statute (the means of infringement test).

per  Jagot J at paragraph 370. 

An approach which reads the “must be taken into account” wording literally poses its own problems. On first blush this would mean that, for example, even if the court had determined that a given person had no relationship under paragraph (b) – the court would still be required to consider the existence of a power and whether any other reasonable steps were taken (similarly a consideration of paragraph (c) if there was neither power nor relationship found).  If not, then the consideration of (for example) the power would be “within and by reference to the conclusion already reached” (that there was no relationship at all between the alleged authorizer and the primary infringer).  It is difficult to believe that the Parliament was intending to mandate a separate inquiry into each of these factors independent of the surrounding circumstances.

Moreover, if it is the case that such an independent inquiry is mandated then s 101(1A) requires that a court take into account “(b)  the nature of any relationship existing between the person and the person who did the act concerned;”.    Parsing the words of paragraph (b) into its parts requires:

  • the consideration of “the nature of” something;
  • that something is “any relationship existing between” two persons;
  • the first of those persons is “the person [who is alleged to have authorised an act]“; and
  • the second of those persons is “the person who did the act concerned”.

Neither of the iiNet decisions appears to have done each of these parts.

The Nature of the Relationship

The Full Court discussed section 101(1A)(b) in the following terms:

There is a direct contractual relationship between iiNet and each of its customers. There is also a non-contractual, more distant, relationship between iiNet and iiNet users who are not actually parties to the customer relationship agreement. There is nothing in s 101(1A) that requires that there be a commercial interest on the part of the alleged authoriser in having the acts of infringement continue. iiNet provided the service by use of which infringing acts were occurring. iiNet had the contractual obligation to provide the service and its customer had the contractual obligation that the service not be used to infringe. That relationship was both contractual and technical.
Thus, iiNet had the capacity to control the use of its services by its customers and to take steps to prevent acts of infringement by the use of services provided to them. In some circumstances, iiNet did in fact exercise control over the provision of its services. The presence of such provisions amounted to a degree of power to prevent further acts of infringement that was significant, for the purposes of s 101(1A)(a). That power arose from the relationship between iiNet and its customers under the customer relationship agreements, the nature of which is significant for the purposes of s 101(1A)(b).

per Emmett J at paragraphs 192, 193

As the trial judge found, there was a contractual relationship between iiNet and its customers and a “non-contractual and more distant relationship” between iiNet and other users of a customer’s account (at [447]). As to the latter, cll 4.2 and 4.3 of the CRA holds customers responsible for allowing others to use the service. Such a user must be taken to use the service subject to the same terms and conditions as the account holder. As noted, for these reasons, and given iiNet’s willingness in other contexts to treat the customer as responsible for all use of the service, no material distinction can be drawn between customers and users.

Under the contract iiNet provided its customers with the required equipment (if requested) and made its technology available so that, by a computer, its customer (or user) could connect to the internet. The contract was commercial in nature. iiNet is in the business of providing and making money from internet services. As noted, the trial judge was not satisfied that iiNet benefited from use of the internet infringing copyright in contrast to non-infringing use (at [451]-[452]). That does not change the fact, however, that iiNet’s relationship with its customers is commercial for the purpose of iiNet making a profit from providing its customers with internet access. It also does not change the fact that iiNet knew that about half of all of the traffic on iiNet’s service (in terms of quota or megabytes) is via BitTorrent and a substantial proportion of BitTorrent traffic involves the infringement of copyright.
The contractual relationship also provided iiNet with the right to collect and use personal information (as defined) of the customer (and thus, by necessary implication, the user as well) for administering and managing the services (cl 12.3(d)). Such administration and management must extend to ensuring that the customer (and user) comply with the terms of the CRA, including the terms prohibiting use so as to infringe another’s rights or for illegal purposes or practices or to allow anybody else to do so (cl 4.2 (a) and (e)). In the event of breach or even a reasonable suspicion of illegal or anticipated illegal conduct, the CRA ensured that iiNet may, without liability, cancel, suspend or restrict the supply of the service (cl 14.2(b), (i), (j), (l) and (n)). Restricting download speeds or “shaping” would thus be permitted under cl 14.2 of the CRA.

per Jagot J at paragraph 428-430

The second matter which s 101(1A)(b) requires the Court to take into account is the nature of the relationship between the respondent and the person who did the act concerned.
The relationship between the respondent and its subscribers is one pursuant to which the respondent, in return for what will usually be fixed monthly fees, provides the connectivity which enables users to access the internet. The relevant relationship for the purposes of s 101(1A)(b) may or may not be contractual depending upon whether the person who committed the act of infringement is one of the respondent’s subscribers. If he or she is a subscriber, then the relationship is one that is governed by the terms of the CRA. Even if the relationship is not contractual, in the sense that the user of the service is not the subscriber, then it is, in any event, closely akin to contractual in that the user’s right to use the respondent’s service could never rise any higher than that of the subscriber.
Clause 4.2 of the CRA provides (inter alia) that the subscriber must not use, or allow anyone else to use, the respondent’s service to infringe another person’s rights (sub-para (a)) or for any illegal purpose or practice (sub-para (e)). Hence, the contractual arrangements pursuant to which the respondent makes its services available to its subscribers expressly forbid the subscriber from engaging in, or allowing any other person to engage in, any of the acts of copyright infringement which the respondent is alleged to have authorised.

per  Nicholas J at 726-728

The Full Court’s discussion of the relationship element provides cause for concern.  First, the high level at which they approach the consideration of the “nature of any relationship” seems to only allow for two such natures – “contractual” and “technical” or “contractual” and “non contractual” (this, presumably, has been influenced by the adoption, by the judge at first instance, of “contractual” and “non contractual” per Cowdroy at paragraph 447, which, in turn appears to be based on the defendant’s pleadings per Cowdroy at paragraph 30). In the example given at the start of this post where you are standing beside a primary infringer, this analysis would find you to have a “non contractual” relationship with the person who did the act concerned.

If a burglar, prior to stealing a computer (primed with infringing subject matter and peer to peer software) from an iiNet customer, turns it on to see that the computer works (thus “making available”) can it really be said that that burglar has a “technical” or “non-contractual” relationship with iiNet?  If they do have a “relationship” with iiNet, do they have a “relationship” with the iiNet customer from whom it is to be stolen (who surely has the “power” (by way of their property in the chattel) to prevent its being turned on)?   What if the burglar was an iiNet customer for their own internet service at home?  Could it seriously be argued that the nature of this accident of contractual relationship is required to considered under paragraph (b)?  The better view would be that there is no relationship existing between the burglar and iiNet within the meaning of paragraph (b).  Just as, for example, the electricity utility referred to in Jagot J’s judgment (at paragraph 384) ought not to be thought of as having a “technical” or “non-contractual” relationship with a primary infringer when that primary infringer uses electricity to power the computer through which the infringement occurs. Rather, there is no “relationship” within the meaning of section 101(1A)(b).

If distinctions such as “contractual/non contractual” or “commercial/not commercial” are the options open, it is hard to determine what effect the identification of “the nature of any relationship” could possibly have on a finding of authorization.  Nothing seems to turn on the difference between a “contractual” and “technical” relationship in the judgment, nor is it easy to see how anything could so turn.   To the extent the paragraph (b) consideration serves any purpose in the judgment, it is to support the finding of a power (which has already been found under paragraph (a)). However, this then is a subsection (a) accounting not one under paragraph (b) which requires taking into account “the nature of the relationship”.   The adoption of “contractual/technical” or “contractual/non-contractual” seems to make paragraph (b) something of a  string of dead letters.  It is difficult to see how the presence or absence of a contractual relationship is relevant.  How could the buyer/seller cases be explained?

Courts Should be Looking to the Relationships in the Case Law

Would it not be more appropriate for the “relationship” factor to be addressed by reference to the existing relationships which have been discussed in the cases?  In particular, with reference to the line of cases beginning with Cyril, which explained how the (then) new wording in the 1911 Copyright Act (UK) cast its net wider than the relationship of master and servant or principal and agent,  but that it did not extend to the relationship between the managing director of an authorizing company and the employees of that company (Cyril).  Observe also that authorization might be found where there was a seller and purchaser (Monckton, Hulton and Falcon).    Mr Brennan in Moorhouse did not have a “technical” or “non contractual” relationship with the University of NSW.  He was (presumably) using the library with the University’s permission and had served up to him a smorgasbord of copyrighted works beside a photocopier.  The relationship was one of recipient of an “invitation” – an invitee [1].  Had he been trespassing at the time of his infringement, arguably Moorhouse would have been decided differently (as any “invitation” by the University would, presumably, not extend to trespassers).  If the wording of section 101(1A) was intended to “codify” the existing law (per Emmett J at paragraph 22), then the existing cases ought to be explicable in its terms.  How is it that the relationship of manager of a corporation and certain employees of the same corporation was not sufficient in Cyril, but a “contractual” or even “non-contractual” relationship was sufficient for the Full Court in iiNet?  Of course, even if section 101(1A) was not intended to codify the law, the relationships considered in the existing case law ought still be drawn upon in interpreting paragraph (b).

The “nature of the relationship” should turn on the same issue I argue it has turned on in earlier cases – whether there was a common understanding (as to the future acts of the primary infringer) between the authorizer and primary infringer sufficient to base a finding of authorization.

[Aside: In this respect Cowdroy J’s “means of infringement” test is appropriate in that it is a proxy for paragraph (b), expressing the nature of the relationship, much as the seller and buyers in Monckton etc.  Having found that there is no relationship, a court would then be justified in not considering (contrary to the “must” wording) paragraphs (a) and (c) for the reasons above.]

“the person who did the act concerned”

Finally, the most notable aspect of all of the judgments is the failure to identify “the person who did the act concerned“.  Rather, the court seems content to identify all infringers (Emmett J at paragraph 59, Jagot J at paragraphs 390 and 391, Nicholas J at paragraph 727) and deal with them in the aggregate.  The words of paragraph (b) neither authorize nor permit this approach.

Consider the position if there had been only a single act of authorization alleged.  How would a court approach the requirements of paragraph (b)?  In particular, because a court must take the nature of the relationship into account, what is the court to do if “the person who did the act concerned” has not been identified?  At one extreme we can consider the burglar mentioned above.  As discussed, there would not seem to be any “relationship” here between iiNet and that hacker.  At the less extreme end consider an innocent iiNet customer whose relative (or houseguest)  is the primary infringer.   Given that the “nature of the relationship”  will (presumably) be different in each case (iiNet and the hacker, iiNet and the iiNet customer, and iiNet and the relative of the iiNet customer)  identifying the primary infringer must be of some importance.  Assuming that consideration of the paragraph (b) component is a mandatory requirement then, arguably, a court must not find an authorization to have occurred unless the primary infringer has been identified [2].  It would not be sufficient for the court to enumerate and consider some possible relationship or relationships, the relationship must be “existing”.   That a court considers multiple infringements does not allow it to adopt a lower standard of proof in relation to them.

Indeed, the word “existing” in paragraph (b) seems to imply that transient relationships (such as a “technical” relationship which might arise between a burglar and iiNet which are constituted only by the act of infringement) ought not be considered – another reason why the identity of the person is a crucial element of paragraph (b).

From the point of view of iiNet being told that an infringement is occurring through one of their customer’s accounts, to what extend can they assess their relationship with the “person who did the act concerned” if that person is not identified to them?  Requiring iiNet to act of its own accord to determine the identity of that person is effectively shifting the burden of proof from the plaintiff to the defendant.  If there are no clear words to this effect, a court ought not read in such a requirement.

By dealing with a number of possible authorizations in the aggregate, the  Full Court does not seem to have fully addressed the requirements of paragraph (b).  This is particularly so given that the court indicated that a person could be infringing merely by turning on a computer on which the relevant software became active as a result.


1:  Or at least sufficiently identified  and on the balance of probabilities in order for the court to identify, and then consider, “the nature of any relationship” between the alleged authorizer and the primary infringer.

2: Any “non-contractual relationship” which might be argued to arise from the act of using the photocopier (eg if the copyright works were not nearby) would be irrelevant in Moorhouse, which emphasised the situation of the works and the means of copying them (eg if Mr Brennan had brought with him his copy of The Americans, Baby to an isolated copier on the University grounds).

iiNet: The History of “Authorization” and “sanction, approve, countenance”

iiNet: The History of “Authorization” and “sanction, approve, countenance”
– The missing mental element of the primary infringer

Update 2012:: my notes on Authorization have become a paper: Scott, B, Authorisation under copyright law and “the nature of any relationship” (2011) 22 AIPJ 172. (Although it should read AuthoriZation, but changed because of Thompson Reuter’s house style :-/

Exposure draft 1 September 2011.

In the 1987 decision of Hanimex, Gummow J commented at 285 that ‘[t]he evolution of the meaning of “authorisation” in the 1911 Act and the 1968 Act has pursued perhaps an even more tortuous course than the doctrine of contributory infringement in the United States’. The Court concurs with such statement, and it has become even more apt in the years following that decision. Despite the legislature’s attempt to simplify the relevant considerations pursuant to the Copyright Amendment (Digital Agenda) Act and s 101(1A), the law of authorisation has continued to grow more complicated and unwieldy, with a litany of competing and contrasting considerations, and with one statement of principle frequently matched with a contradictory one. The authority on authorisation has become a mire. 

Cowdroy J  at first instance para 358


The City of Adelaide case is not authority for including “permit” within the ambit of the meaning of “authorize”.

The history of the words “sanction, approve, countenance” show that there is more to an authorization than merely the acts of the person alleged to be authorizing.   In addition to those acts, the mental state of the person carrying out the primary infringement is a necessary ingredient.  In particular, the primary infringer must have some belief that the authorizer has the right or power to grant such an authorization.  Acknowledging this component of “authorization” will make the various decisions much more sensible, and less miresome.

[While not argued here, we suspect that for this reason the decision of the judge at first instance should be followed in the iiNet case.  That is, in the minds of the users there is no possibility for them to have a mental state that iiNet is authorising them.  Cowdroy J’s focus on provision of the means of infringement is identifying the basis on which such a mental state can be supported.   If this mental state in the primary infringer is conceded, Cowdroy’s approach is not inconsistent with s 101(1A). ]

Note: this draft is made available for comment.


The High Court has recently granted special leave to appeal in Roadshow and others v iiNet (the iiNet case). This case is concerned with the liability of Internet service providers for authorizing infringements which occur through the use of the Internet service provider’s infrastructure. Under the law relating to authorization a second person can be liable for an infringement carried out by a first person in if that second person has “authorized” the first person’s infringement. The concept of authorization has been treated on many occasions in Australian case law. Its history is summarised by Gummow J in the Hanimex case. In particular, the High Court in the Moorhouse case held that a university library, by locating a photocopier near to racks of shelving containing books, some of which were still subject to copyright, had authorized infringements in relation to those works which occurred when people photocopied then using the photocopiers which had been so located.

In order for authorization to be made out, a “primary” infringement must be proven.  That is, simply saying to someone “go and make a copy of this” is not an infringement if they do not then go and copy.  However, if they do go and copy, then there are two infringements – the primary infringement, being the making of a copy, and the authorization of that primary infringement.  In the iiNet case this primary infringement is that of “making available online”. When a person “makes available online” a copy of a copyright work that “making available” itself constitutes an infringement.  In this case, the infringement is of the right to communicate to the public (defined in section 10 of the Act). Is in the lower courts this infringement has been established by users using peer-to-peer software and having the relevant copyright work within a particular folder for sharing by their peer to peer software.

Authorization isn’t – where is “sanction, approve, countenance”?

Unfortunately, in the Act, the word “authorize” has been interpreted to mean something other than “authorize”.   Rather, courts have read into the term “authorize” the concepts of “sanction, approve, countenance”, based on some words of Gibbs and Jacobs JJ in Moorhouse.

Moorhouse:  In that case Gibbs J says:

” The word “authorize”, in legislation of similar intendment to s. 36 of the Act, has been held judicially to have its dictionary meaning of “sanction, approve, countenance”: Falcon v. Famous Players Film Co. (1926) 2 KB 474, at p 491 ; Adelaide Corporation v. Australasian Performing Right Association Ltd. [1928] HCA 10; (1928) 40 CLR 481, at pp 489, 497 .” (Per Gibbs J at paragraph 10).

In addition Jacobs J says:

It is established that the word is not limited to the authorizing of an agent by a principal. Where there is such an authority the act of the agent is the act of the principal and thus the principal himself may be said to do the act comprised in the copyright. But authorization is wider than authority. It has, in relation to a similar use in previous copyright legislation, been given the meaning, taken from the Oxford Dictionary, of “sanction, approve, countenance”. See Falcon v. Famous Players Film Co. (1926) 2 KB 474 which was approved in Adelaide Corporation v. Australasian Performing Right Association Ltd. [1928] HCA 10; (1928) 40 CLR 481 . I have no doubt that the word is used in the same sense in s. 36 (1). It is a wide meaning which in cases of permission or invitation is apt to apply both where an express permission or invitation is extended to do the act comprised in the copyright and where such a permission or invitation may be implied. Where a general permission or invitation may be implied it is clearly unnecessary that the authorizing party have knowledge that a particular act comprised in the copyright will be done. (per Jacobs J at paragraph 9)

The third judge, McTiernan A.C.J. did not write a separate judgment, but agreed with the others. So this wording is essentially unanimous.  I note here that no dictionary I have gives “sanction, approve, countenance” as the meaning of authorize.

Adelaide Corporation: However, neither  Falcon nor Adelaide Corporation say that “authorize” has its ordinary dictionary meaning of “sanction, approve, countenance”.   In  Adelaide Corporation v  Australian Performing Right Association Limited, the  Falcon case was referred to in the dissenting judgment of Isaacs J who adopted something very similar to, but different from, the Gibbs/Jacobs  forumla:

“For the word “cause,” which had been given a restricted meaning, there was substituted the word “authorize,” and that word is now understood as importing the sense of “sanction, approve and countenance” (see Falcon v. Famous Players Film Co.).” [my emphasis – as we will see below Isaacs J is accurately quoting Falcon, whereas Gibbs/Jacobs JJ are not.]

Higgins J (part of the majority, but in a separate decision) also refers to the formula but in a contra-positive way .  Higgins J does not cite the Falcon case and does not explicitly adopt the wording as a test.  What Higgins J says is:

“This action has, by consent, been tried on the motion affidavits; and there is not the slightest evidence of any “sanction, approval or countenance” given by the Corporation to the performance of the song in question.” [my emphasis]

The other two judges in the majority in Adelaide Corporation (five judges heard the case, so even a minority so much as referred to the sanction, approve and countenance wording) base their discussion on the Performing Right Society v. Ciryl Theatrical Syndicate (1924) 1 K.B. ignoring Falcon and ignoring the “sanction, approve, countenance” wording.  Indeed, this is not altogether surprising because the focus of the judges in the City of Adelaide case was whether the Corporation had “permitted” the relevant activity.  Gibbs J in Moorhouse says Adelaide Corporation treated “authorize” and “permit” as synonymous:

“It can also mean “permit”, and in Adelaide Corporation v. Australasian Performing Right Association Ltd. [1928] HCA 10; (1928) 40 CLR 481 “authorize” and “permit” appear to have been treated as synonymous. “

However, this appears to be simply wrong.  This is discussed in the end note below.

It is hard to see that Adelaide Corporation is authority for Gibbs/Jacobs JJ’s statement.

Falcon: So, what of  Falcon?  That case references the”dictionary” wording as follows:

It has been said, and I think the comment is not an unfair one, that the use of that word “authorise” adds nothing to the definition, because, strictly speaking, the sole right of performance must necessarily include the right to authorize performance. But when the definition of “copyright” is read in connection with that of “infringement,” I think it becomes fairly apparent that the object of introducing the word “authorise” was to get rid of the effect of certain decisions, of which  Karno v. Pathé Frères  was the most recent, in which it was held upon the language of earlier statutes that a defendant who for reward gave permission to a third person to represent a play in breach of the owner’s copyright did not “cause it to be represented,” unless the person so representing it was the servant or agent of the defendant. In the present statute that language has been deliberately dropped, and for the word “cause” has been substituted the word “authorise”; and the decision of Tomlin J. in  Evans v. Hulton and the dictum of Buckley L.J. in  Monckton v. Pathé Frères  both clearly indicate that in the opinion of those learned judges the present expression is to be understood in its ordinary dictionary sense of “sanction, approve, and countenance.” If that is the true view I think McCardie J. was, upon the materials before him, amply justified in coming to the conclusion that the first three defendants had infringed the plaintiff’s sole right to authorize the performance of the play. For these reasons I am of opinion that the appeal should be dismissed. (per Bankes LJ at 490)

That is, in comments by a single judge  of the three judges that heard the case).  Note also here that the words used are “sanction, approve and countenance” (my emphasis).  These were faithfully reproduced in Adelaide Corporation, but were transformed into “sanction, approve, countenance” in Moorhouse.    The disjunctive form has survived in the  iiNet case – “The word authorise, when used in s 101, has its dictionary meaning of sanction, approve or countenance.” (per Emmett J at paragraph 24, emphasis in original).

Moreover, the Falcon case also had this to say about “authorize”:

For the purposes of this case it appears to me that to “authorize” means to grant or purport to grant to a third person the right to do the act complained of, whether the intention is that the grantee shall do the act on his own account, or only on account of the grantor; and that construction of the word “authorize” seems to have been the one adopted by Buckley L.J. in Monckton v. Pathé Frères , where he held that the seller of a gramophone record authorizes the use of the record, and by Tomlin J., who in  Evans v. Hulton held that a person who sold to a publisher serial rights in stories written by the plaintiff authorized the printing and publication of them. (per Atkin LJ at 499)

Evans: The reference to Evans v Hulton [1924] All E.R. Rep 224 appears to be the ultimate origin of the “sanction, approve, countenance” wording.  In Evans v Houlton the plaintiff, Evans, ghost wrote an autobiography of a fellow, Zeitun, based on an agreement that Zeitun would find a buyer for the story and would share the proceeds of any sale.  Zeitun told the plaintiff that he couldn’t find any buyers, then found a buyer, Hulton.  Hulton started publishing the story and Evans sued Hulton and Zeitun, claiming, in part, that Zeitun had authorised the publication.  The court found that, by providing the manuscript to the publisher Zeitun had authorised its publication.  In that case Tomlin J didn’t say that authorisation should have its meaning in the dictionary.  What he said was:

“It has been ingeniously argued that in the subsection “to authorise any such acts” means to sanction their being done by the servant or agent of the person affecting to give the authority on his behalf, and that there is no infringement of a copyright when that person to whom authority is given is not the servant or agent of the person affecting to give it.  In my judgment, this is to put too narrow a meaning on the word, which is defined in the Oxford Dictionary as meaning, in connection with the authorisation of acts, “to give formal approval to, to sanction, approve, countenance.” In my opinion, where a man sells the right in relation to a manuscript to another with the view to its production, and it is in fact produced, both the English language and common sense requires it to be held that that man “authorised” the printing and publication.” (per Tomlin J, Evans v Hulton [1924] All E.R. Rep 224 at 225)

I note here that Tomlin includes “give formal approval to”.  It is also important to note that Tomlin J gives the dictionary “meaning”.  in Falcon, Bankes LJ left out the first component, relating to the giving of formal approval to.  However, in Falcon Bank LJ doesn’t say this is the meaning.  Rather, he says that it has it’s dictionary sense of “sanction, approval and countenance”.   This might be considered a reasonable interpolation of the actual meaning given by Tomlin J.   Presumably, Bankes LJ felt the addition of “and” was sufficient to read out “give formal approval to” when proposing the formula he did.   Isaacs’ wording in Adelaide Corporation is consistent with this, referring to the dictionary “sense”.

The whole of the court in Moorhouse has purported to give “authorize” its dictionary meaning and then failed to do so.  The Moorhouse court adopted not even the dictionary “sense” averted to in the authorities cited, but  rather, have substituted a new formula entirely – that of “sanction, approval, countenance” (into which later judges have read “or”).  This almost completely upends the earlier authorities cited in support.

Monckton:  Falcon refers to the dictum of Buckley J in this case.  The judgment of Buckley J does not use any of the Moorhouse words at all, let alone in explaining the meaning of authorization.  Nor does it refer to ordinary or dictionary meaning.  In the case, the defendants legally manufactured a quantity of records and imported them into England.  Before they sold the records the Copyright Act 1911 came into force vesting in the composer of the works recorded on the records a right to perform the works recorded.  The court held that the sale of the records was an infringement of the right to authorize the performance of the works.  This seems to be the passage that Falcon is referring to:

“…it seems to me that the Act has given to the owner of the new and extended copyright as defined by the Act the sole right to authorize any one to produce the musical work (e.g., by the user of the record: s. 1, sub-s. 2), and has made it an infringement of his rights that a person should sell a record which to the knowledge of the seller infringes the sole right of the composer to produce the work by the use of the record: s. 2, sub-s. 2.. (per Buckley LJ, Monckton v. Pathé Frères [1914] 1 K.B. 395 at 405, Vaughan Williams L.J. “entirely agree[ing]”)

That is to say that what Bankes LJ is stressing in Falcon is the mental state of the primary infringer.  However, the Moorhouse decision has only taken part of the Falcon meaning.  Indeed, while the Moorhouse case does identify the need of a mental element, it is placed wholly on the authorizer.

Conclusion – The Primary Infringer’s State of Mind as the Missing Mental Element

What all of these cases establish is that the absence of service or agency is not intended to defeat a claim of authorization or rather, the purpose of the inclusion of authorization under the 1911 Act was to overcome a particular limitation found in the case law.  However, for all of them, the background of the discussion is one in which the primary infringement is a natural, if not necessary, consequence of the action of the authorizer and that this is known or understood by the primary infringer.   In Monckton, it was the expectation of both the seller and the purchaser that the record would be played after it was purchased.  In Hulton, it was the expectation of both the seller and the purchaser  that the manuscript would be published.  In Falcon,  it was the expectation of both the seller and the purchaser  that  the films would be shown in the theatre.  Further, in each case it was reasonable for the purchaser to believe that the seller had the power to allow the purchaser to do the relevant act.  [As an aside, it is likely that Moorhouse can be fit within this requirement, Cooper possibly, but iiNet unlikely]  Consider a thought experiment in which each of these cases was re-run, except that the seller was selling to a purchaser under a common understanding that they would be broken into its elements for recycling (to recover the paper in the manuscript, the shellac of the records and so forth).  Had the purchaser turned around after the sale and then published, played and so forth it is hard to imagine an authorization by the seller would be found in these cases, despite the seller having done the same acts.

In each of these cases there is not only a relationship between the authorizer and the primary infringer, there is a common understanding.   This is consistent with the explanation of the purpose of the wording being to catch third parties who are not servants or agents.  The summary of the plaintiff/respondent’s argument (not part of the judgment) preceding Falcon casts this into relief, as it explains:

“…[in  Evans v. Hulton], a person, who sold to a firm of publishers the serial rights in certain stories written by the plaintiff, was held to have infringed the copyright by authorizing the printing and publication. Tomlin J. there adopted the definition of the word “authorise” given in the Oxford Dictionary, “To give formal approval to, to sanction, approve, countenance.” That word is not, like the word “cause,” limited to the giving of directions to a servant. A man who has no legal right to do an act himself may authorize another to do it, if that other believes that he is in a position to give him the legal right to do it, which was the case here.” (at 486) [my emphasis]

The highlighted wording is significantWhile this wording does not form part of the judgment, it demonstrates the assumption of the copyright owner in pursuing the case.  Therefore, if the court is to give to “authorize” it’s ordinary, contemporaneous meaning, these submissions, coming as they are from the copyright holder, are relevant as evidence of that meaning.

This wording also identifies the common, but unstated thread running through all of these cases on which the meaning of “authorization” is based.    That is, to say, whether  a person A “authorizes” another person B to do an act is not purely a matter of the conduct of A.  In addition to the conduct of A, B must have a particular state of mind.  B must have some perception not only of authority flowing from A, but also of A’s right or ability to grant such an authority.   This is consistent with the “ordinary” meaning of authorization.

[ It is this mental element which is the reason Cowdroy J’s approach is likely the right one.]

End Note: Did Adelaide Corporation treat “authorize” and “permit” as synonymous?

The Adelaide Corporation case was concerned with section 2(3) of the Imperial Copyright Act (which had been adopted as law in Australia by our 1912 Act).   The subsection (3) reads:

“Copyright in a work shall also be deemed to be infringed by any person who for his private profit permits a theatre or other place of entertainment to be used for the performance in public of the work without the consent of the owner of the copyright, unless he was not aware, and had no reasonable ground for suspecting, that the performance would be an infringement of copyright.”

The Act uses the word “permits”, not authorizes.  The question put to the court was whether section 2(3) had been breached, so the court was not asked to form an opinion on the meaning of “authorizes”.   Now, reviewing each of the judges’ references to “authorize” in turn:

Knox CJ does not refer to authorize.

Gavan Duffy and Starke JJ observe:

Inactivity or “indifference, exhibited by acts of commission or omission, may reach a degree from which an authorization or permission may be inferred. It is a question of fact in each case what is the true inference to be drawn from the conduct of the person who is said to have authorized the performance or permitted the use of a place of entertainment for the performance complained of” (Performing Right Society v. Ciryl Theatrical Syndicate).

However, this is not to treat them as synonymous.  Rather, they are quoting a decision of Bankes LJ in Ciryl.  In that case:

The two questions to be considered were whether there was any evidence that the appellant (1.) authorized the performance of these musical works by the band of the theatre on the particular days or (2.) permitted the use of the theatre for his own private profit for the performance of the works on those occasions. (per Bankes LJ Performing Right Society v. Ciryl Theatrical Syndicate at 8)

So, it was appropriate for Bankes LJ to phrase things in this way because both issues were put before the court in that case.  Gavan Duffy and Starke JJ are simply quoting the wording of Bankes LJ (the quoted section appears in the judgment of Bankes LJ).

The only other reference to “authorizes” in the judgment of Gavan Duffy and Starke JJ is about the effect of a clause:

“Now, the clause does not give the Corporation any control over J. C. Williamson Ltd. or Hislop or over concerts given by them in the Town Hall: all it authorizes is a termination of the contractual relationship constituted by the letting agreement.”

Here authorization is not being used in its Copyright Act sense.

Issacs J refers to authorize (see quote above), but only for the purpose of illustrating the meaning of permits (and thereby distinguishing them):

“For the word “cause,” which had been given a restricted meaning, there was substituted the word “authorize,” and that word is now understood as importing the sense of “sanction, approve and countenance” (see Falcon v. Famous Players Film Co.[3]). Along with that significant change, there was inserted the sub-section now under consideration, which is a necessary complement in the scheme of protection. It extends the previous limited responsibility of proprietors of halls who merely hire them out for remuneration without being directly connected with the performance itself. The gist of the sub-section is that such a person who “permits” the performance of a copyright piece is to all intents and purposes as much an infringer of the copyright by providing for gain to himself the necessary means of infringement as if he directly produced the performance, unless he proves that “he was not aware, and had no reasonable ground for suspecting” that the performance would be an infringement.

Like the new word “authorize,” the word “permits” is of very extensive connotation. Having international effect, it should not be restricted to narrow limits. Going to the dictionary, as did Buckley L.J. (as he then was), for the former word, we find that in the Oxford Dictionary the primary meaning of “permit” is: “to allow, suffer, give leave; not to prevent.”

Neither of these references treats “authorize” and “permit” as synonymous.  Indeed, it assumes them to have distinct meanings.

Higgins J refers to “authorize” as follows:

“As Bankes L.J. said in the Ciryl Case, the indifference was “not of a kind to warrant the inference of authorization or permission. It was the indifference of one who did not consider it his business to interfere, who had no desire to see another person’s copyright infringed, but whose view was that copyright and infringement were matters for” others (here J. C. Williamson Ltd.) “to consider.” The essence of the position is that J. C. Williamson Ltd., had, on the existing facts, control of the performers as to what they should sing, whereas the Corporation had none.”

Again, this is merely a quote of Bankes LJ in Ciryl.  Higgins J also says:

“As the Supreme Court have also pointed out, to prove permission it is not enough to show that the Corporation gave a mere general authority for the performance of musical works, a “vocal concert”: it must be proved that permission was given to perform the particular works in question (and see per Atkin L.J. in Performing Right Society v. Ciryl Theatrical Syndicate). Where is there even a semblance of proof of such permission?”

But again, this is not a reference to authorization in the Copyright Act sense.  Indeed, it distinguishes the “giving of authority” and permission.  A review of Cyril, the case cited, also reveals a repeated reference by their Lordships to both “authorize” and “permit” as separate concepts, with no attempt to identify them as a single concept.  One can concede that “indifference, exhibited by acts of commission or omission, may reach a degree from which an authorization may be inferred.” and that “indifference, exhibited by acts of commission or omission, may reach a degree from which a permission may be inferred” but this does not justify a conclusion that “authorize” and “permit” are synonymous – just as tables and dogs both have four legs, but this does not make tables dogs.

Adelaide Corporation is not authority for identifying “authorize” and “permit”.  Indeed, both it, and Cyril, the case it primarily cites, are authority for distinguishing them, especially given that the legislature chose to use “permit” in section 2(3), and “authorize” in section 1(2).

Second End Note Cyril and iiNet

As an aside here, the Cyril case was concerned with whether the manager of a corporation had authorized the infringement by the corporation’s players of a particular work.  At first instance both the corporation and its manager were found to have authorized.  However, the manager brought an appeal against the decision, and it was his appeal which their Lordships were considering in Cyril.  In many respects Cyril is very similar to the iiNet decision in that the manager may have had the relevant elements set out in section 101(1A) (or at least to a similar level as iiNet has of making available infringements), yet he was still found not to have authorized the performance based on principles of whether, as an officer, he had made the tort his own.

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