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Copyright Infringement via indirect access to copyright work

Written by Kris Darmody

A recent case in the Federal Court of Australia has confirmed that an unseen work protected by copyright may be infringed where such work is reproduced indirectly pursuant to the oral instructions of a third party. 

The case of Vawdrey Australia Pty Ltd v Krueger Transport Equipment Pty Ltd [2009] FCAFC 156, involved alleged indirect copying by Vawdrey of a trailer manufactured for transporting goods, designed by Krueger.

A third party transport company Camerons, requested each of Vawdrey and Krueger to provide quotes for the supply of truck trailers, which would form part of a tender being prepared by Camerons.

As part of Krueger’s submission to Camerons, it provided sketches and engineering drawings to illustrate a specific gate system as a distinctive feature of the truck trailers designed by Krueger. The “Krueger Drawings” became part of Cameron’s successful tender. Upon winning the winning the tender Camerons engaged Vawdrey to supply trailers that were to be modified to be in line with the Krueger Drawings; Camerons instructed Vawdrey to modify Vawdrey’s drawings so that they conformed to the Krueger Drawings, and Vawdrey built the trailers in this way.

At first instance, it was found that Vawdrey had infringed copyright in the Krueger Drawings, through changing their own initial drawings, so that they were in line with the Krueger Drawings. Vawdrey appealed, challenging the initial finding of infringement on the basis that mere instructions to modify the Vawdrey works to bring them in line with the Krueger drawings, was not sufficient casual connection between the worked protected by copyright and the modified Vawdrey drawings; the instructions merely conveyed the “idea” of the work rather than an expression of the idea.

Vawdrey’s appeal was dismissed and the court found that indirect access to copyright work was sufficient for establishing a casual link. Lindren J noted that “access to the copyright work is but one way of proving casual link and need not be present if the casual link is established without it”. The casual link was found to be established through instructions from Camerons to Vawdrey, and it was not relevant that it was not established that Vawdrey had direct access to Krueger’s work.

In addition, Vawdrey challenged the initial ruling that the trailers themselves, as a 3-dimensional construction, were an infringement of the copyright in the Krueger Drawings. This was dismissed. The appeal court found that if the Vawdrey Drawings were found themselves to infringe copyright in the Krueger Drawings, then it was “not a large step to deduce that the completed trailers would likewise exhibit the requisite degree of resemblance to the perspective illustrated in the drawings”.