Realestate.com.au Pty Ltd v. Hardingham & Ors
RP Data Pty Limited v. Hardingham & Ors

Lower Court Judgment

18/08/2021 Federal Court of Australia (Greenwood, Rares and Jackson JJ)

[2021] FCAFC 148

Catchwords

Copyright – Informal oral agreements – Inferred term – Implied term – Where Hardingham professional photographer and sole director of Real Estate Marketing Australia Pty Ltd ("REMA") – Where REMA commissioned by agencies to take photographs and prepare floor plans of properties for use on platforms concerning marketing of properties for sale or lease – Where retainer of Hardingham and REMA by agencies oral, informal and said nothing of copyright in photographs and floorplans – Where Hardingham entered into "deed of licence" with REMA by which Hardingham granted REMA exclusive licence of copyright subsisting in works originated by him – Where photographs and floor plans provided to each agency were uploaded to platform realestate.com.au operated by Realestate.com.au Pty Ltd ("REA") – Where, to list property on platform, agency had to hold real estate licence and enter subscription agreement which prescribed Terms and Conditions ("T&C") as part of agreement – Where T&C provided that agency granted licence to REA to use and adapt content provided by agency – Where s 15 of Copyright Act 1968 (Cth) provided "act shall be deemed to have been done with licence of copyright owner if doing of act was authorized by a licence binding copyright owner – Whether, in informal agreement under which owner of copyright in works intends to grant another person licence to use works, including right to grant sub-licence to third party, it is necessary for licensor and licensee to know precise terms of grant by sub-licence – Whether, for purposes of engaging s 15 of Copyright Act, it is necessary to show what licence binding on owner allowed, and whether infringer acted consistently with licence.