FEDERAL COURT OF AUSTRALIA

Dynamic Supplies Pty Limited v Tonnex International Pty Limited (No 2) [2011] FCA 675

THE COURT ORDERS THAT:

In these Orders:

(a)    “Dynamic” means the applicant.

(b)    “Tonnex” means the respondent.

(c)    “Dynamic’s Compatibility Chart” means the CSV file providing compatibility information for printer and computer consumables which was uploaded to Dynamic’s website on or about 7 March 2008.

(d)    “Tonnex’s infringing price lists” means the price lists published by Tonnex known as:

(i)    Tonnex International 2008 QTR 2 Price List;

(ii)    Tonnex International February 2009 Price List; and

(iii)    Tonnex International 2010 Price List.

(e)    “Tonnex’s misleading representations” means:

(i)    the genuineness representation;

(ii)    the reliability representation;

(iii)    the tax free representation;

(iv)    the Australian-made representation; and

(v)    the Australian jobs representation.

(f)    “The genuineness representation” means the representation that:

Tonnex can be certain that all of the printer and computer consumables offered for sale or sold by it are genuine and not counterfeit.

(g)    “The reliability representation” means the representation that:

Customers of Tonnex can rely upon Tonnex to only ever sell 100% genuine OEM products.

(h)    “The tax free representation” means the representation that:

Customers of Tonnex participating in the HP Supplies Rewards Program could obtain a tax-free benefit worth up to 10% of the value of their purchases of eligible HP products from Tonnex.

(i)    “The Australian-made representation” means the representation that:

Products sold by Tonnex are genuine Australian-made products.

(j)    “The Australian jobs representation” means the representation that:

By purchasing products from Tonnex, purchasers are protecting jobs in Australia involved with the manufacture of the products in Australia.

(k)    “Eligible HP products” means Hewlett Packard printer and computer consumables.

(l)    “Trade Practices Act” means Trade Practices Act 1974 (Cth).

(m)    “Copyright Act” means Copyright Act 1968 (Cth).

COPYRIGHT INFRINGEMENT CLAIM

The court:

1.    DECLARES that Dynamic is the owner of copyright in Dynamic’s Compatibility Chart.

2.    DECLARES that Tonnex has infringed Dynamic’s copyright in Dynamic’s Compatibility Chart by reproducing or authorising the reproduction of Dynamic’s Compatibility Chart or a substantial part thereof without the licence of Dynamic.

3.    ORDERS that Tonnex within 14 days of this Order:

(a)    deliver up to Tonnex’s solicitor, Mr Szmerling (Tonnex’s solicitor) for destruction, all documents or electronic files which are in the possession, custody or control of Tonnex, its employees, servants or agents, which reproduce Dynamic’s Compatibility Chart or a substantial part thereof, including each of Tonnex’s infringing price lists; and

(b)    under the supervision of Tonnex’s solicitor permanently delete or otherwise destroy all electronic files which reproduce Dynamic’s Compatibility Chart or a substantial part thereof, including each of Tonnex’s infringing price lists and which are stored on any computer, server or electronic storage device owned or used by Tonnex, or which is otherwise in the control of Tonnex; and

(c)    under the supervision of Tonnex’s solicitor permanently remove from Tonnex’s website http://www.tonnex.com.au/ any pages which reproduce Dynamic’s Compatibility Chart or a substantial part thereof, including Tonnex’s infringing price lists.

4.    NOTES the undertaking given to the Court by George Solomon and George Kozman in paragraphs (a) and (b) of Exhibit 3.

TRADE PRACTICES CLAIM

5.    DECLARES that:

(a)    By making the genuineness representation Tonnex contravened s 52 of the Trade Practices Act;

(b)    By making the reliability representation Tonnex contravened s 52 of the Trade Practices Act;

(c)    By making the tax free representation Tonnex contravened ss 52 and 53(c) of the Trade Practices Act;

(d)    By making the Australian-made representation Tonnex contravened ss 52 and 53(eb) of the Trade Practices Act; and

(e)    By making the Australian jobs representation Tonnex contravened ss 52 and 53(eb) of the Trade Practices Act.

6.    ORDERS that, within 14 days of the date of these orders, Tonnex, under the supervision of Tonnex’s solicitor:

(a)    permanently remove from Tonnex’s website http://www.tonnex.com.au/ any pages which publish Tonnex’s misleading representations or any of them; and

(b)    remove or caused to be removed, and destroy or cause to be destroyed, all promotional material, including signage, posters, flyers and leaflets, whether in hard copy or digital, which incorporates, repeats or expresses any of Tonnex’s misleading representations from each of its business premises situated in New South Wales, Victoria and Queensland and wherever else Tonnex’s misleading representations, or any of them, appear that is within the control of Tonnex.

7.    NOTES the undertaking given to the Court by George Solomon and George Kozman in paragraph (c) of Exhibit 3.

GENERAL ORDERS

8.    ORDERS that, within 28 days of this Order:

(a)    Tonnex by its proper officer, make, file and serve on Dynamic an affidavit verifying the steps that it has taken to comply with Orders 3 and 6 hereof; and

(b)    Tonnex’s solicitor make, file and serve on Dynamic an affidavit verifying the steps that he has taken in relation to Tonnex’s compliance with Orders 3 and 6 hereof.

LEAVE TO APPEAL

9.    GRANTS Tonnex leave to appeal on the question of the subsistence of copyright in Dynamic’s Compatibility Chart in accordance with the draft notice of appeal which is Exhibit 2.

10.    ORDERS that, subject to further or other order, Order 3 and Order 8, insofar as it concerns compliance with Order 3, be stayed until the period ending seven days after the making of final orders in the appeal.

OTHER ORDERS

11.    RESERVES the question of costs.

12.    ORDERS that the parties take steps within seven days after the making of final orders in the appeal to relist the proceeding for directions as to its further conduct to determine the quantum of any damages (including liability for additional damages pursuant to s 115(4) of the Copyright Act) or, alternatively, for an account of profits which Tonnex may be liable to pay, and any relief consequential thereon.

13.    GRANTS liberty to apply.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    On 13 April 2011 I published my reasons for finding that the respondent (Tonnex) had infringed the copyright owned by the applicant (Dynamic) in a literary work (a compilation) called the March 2008 CSV file, and that Tonnex had contravened ss 52 and 53(c) and (eb) of the Trade Practices Act 1974 (Cth) (the Trade Practices Act) by making certain representations on its website and in its promotional material: Dynamic Supplies Pty Limited v Tonnex International Pty Limited [2011] FCA 362. These findings were made after a hearing (the first hearing) which was limited to determining all questions of liability other than in respect of damages or other pecuniary relief under the Trade Practices Act and the Copyright Act 1968 (Cth) (the Copyright Act).

2    After publishing my reasons I adjourned the proceeding to a date for the making of directions for the further conduct of the proceeding, including in relation to any debate about what, if any, relief should be granted at the present time. Subsequently I made a number of directions relating to the filing of additional affidavits (dealing with matters occurring after the first hearing concerning the question of relief) and the service of written outlines of submissions.

3    I have now heard argument on the question of what relief should be granted at the present time, in the course of which I received additional affidavit evidence filed on behalf of Dynamic and Tonnex, respectively. The evidence in these affidavits has assisted my determination of how the Court’s discretion should be exercised in relation to the granting of some of the relief that has been claimed by Dynamic.

4    In relation to my finding of copyright infringement, Dynamic seeks, at the present time, the granting of:

    declaratory relief as to copyright ownership and copyright infringement of the March 2008 CSV file;

    injunctive relief against further infringement; and

    orders for delivery up and destruction, or removal, of infringing material.

5    In relation to my findings of contravention of the Trade Practices Act, Dynamic seeks, at the present time, the granting of:

    declaratory relief as to the contraventions I have found;

    injunctive relief against further contravention;

    orders for the removal and destruction of material containing the contravening representations;

    an order for corrective advertising;

    an order compelling the respondent to introduce and administer a compliance program in relation to its obligations under the (now) Australian Consumer Law (Sch 2 of the Competition and Consumer Act 2010 (Cth)).

6    As a general matter, Dynamic also seeks orders providing for the verification of steps taken to comply with the mandatory injunctive relief that Dynamic seeks at the present time.

7    Tonnex advances no reason, in principle, why the declaratory relief that Dynamic seeks should not be granted. It does, however, oppose the granting of the other relief that Dynamic seeks at the present time. A related consideration in that connection is the fact that Tonnex’s directors, George Kozman and George Solomon, have indicated their preparedness to give certain undertakings, personally and on behalf of Tonnex, should I come to the view that the injunctive relief, as sought by Dynamic, is warranted in the circumstances.

8    Tonnex has adduced evidence (principally through an affidavit sworn on 31 May 2011 by James Rendell, its National Marketing Manager) to the following effect:

    Tonnex does not currently use the compatibility charts which I have found to infringe Dynamic’s copyright in the March 2008 CSV file.

    In November 2010 Tonnex adopted a new system of communicating compatibility information to its customers, using an online service called “Cartridge Finder”.

    Mr Rendell undertook, or instructed others to undertake, a number of steps (the details of which it is unnecessary to recount for present purposes) in order to comply with a general instruction given to him by Messrs Solomon and Kozman on or about 18 April 2011 to search all existing websites and promotional material and to remove any instance of the contravening representations.

9    Dynamic has adduced evidence of what it says are examples where Tonnex was continuing to make some of the contravening representations. One example was said to be where Tonnex was continuing to use (what has been called in the proceeding) the second reliability representation, on its website. I note, however, that this evidence was based on a search of Tonnex’s website on 15 April 2011, only two days after the publication of my reasons and before Messrs Solomon and Kozman gave their instruction to Mr Rendell. Another example was based on a statement attributed to Mr Solomon and reproduced in a publication called Stationery News, on 4 April 2008, before the publication of my reasons.

10    There were, however, two instances of publication on 23 May 2011, ten days after the publication of my reasons. One was an apparent third-party endorsement of Tonnex that Tonnex published on its website, which commenced with the following sentence: “Tonnex International is our wholesaler for 100% genuine OEM consumables”. The other was the publication of an advertisement for Tonnex on the website of Australian Photography, which said:

Tonnex International is a supplier of 100% Genuine OEM products. We stock a full range of ink cartridges toner cartridges supplies such as photo paper and accessories such as XD cards and USB Flash Drives. We have key relationships with key Vendors to ensure that you only ever get the 100% Genuine OEM product first time every time. Don’t risk your reputation with counterfeit products. Choose Genuine Choose Tonnex. Custom Products Featured: Printers – Inkjet Inks Memory Cards Paper – Inkjet Printable

[Capitalisation in original]

11    Mr Rendell gave evidence that this website was unknown to the Marketing Officer of Tonnex whom he had instructed to undertake website searches to identify instances of Tonnex’s use of the contravening representations. Mr Rendell’s evidence was that he instructed the Marketing Officer to amend this listing and to conduct further searches to see whether there were other website listings relating to Tonnex “that we could not recall or were not aware of”. This further search apparently resulted in another website being located with content that Mr Rendell did not identify but which he said Tonnex was “in the process of having amended”. Mr Rendell said that this example “highlights the difficulty of managing content of a (c)ompany with products such as Tonnex on such an open medium as the Internet”.

12    I should also record that evidence was given in the first hearing that (what has been called in the proceeding) the tax free representation has not been made since August 2009. There is also evidence that (what I have termed) the Australian jobs representation, has not been made since about mid-March 2009. At that time Tonnex issued a correction to which I referred in [216]-[218] of my reasons. Although, in my reasons, I criticised the way in which the correction stated the circumstances in which it came to be made, the correction did, in terms, make clear that the representation about “protecting more Australian jobs” should only be understood as “supporting the jobs of Brother employees here in Australia” in respect of products that Tonnex had purchased “through the Australian channel”. Tonnex made clear that these products were not made in Australia. Mr Kozman gave evidence in the first hearing that the correction was made and “circulated” by means of a leaflet and that there has been no repetition of the Australian jobs representation.

13    Having recorded these matters, I now turn to consider the relief that should be granted at the present time.

Relief relating to copyright infringement

14    I am satisfied that it is appropriate to grant the declaration that Dynamic seeks in respect of its ownership of copyright in the March 2008 CSV file. The question of the subsistence of copyright in the March 2008 CSV file (and hence Dynamic’s ownership of that property right) was a significant issue that was strenuously contested at the first hearing. That issue has now been determined in Dynamic’s favour. For the same reasons, I am also satisfied that it is appropriate to grant the declaration that Dynamic seeks in respect of Tonnex’s infringement of that copyright. As I have noted, Tonnex advances no reason why these declarations should not be made.

15    I am satisfied that, but for the undertakings that have been proffered by Messrs Solomon and Kozman, this would be an appropriate case for the granting of the injunctions that Dynamic seeks. Although Tonnex submits that an inference that no further infringement is threatened or likely should be drawn from Mr Rendell’s additional affidavit evidence about Tonnex’s current use of the “Cartridge Finder” system, Dynamic has pointed to other matters which persuade me that, on balance, injunctive relief would have been appropriate in the absence of the undertakings that have been proffered.

16    As I have noted, Tonnex strenuously contested Dynamic’s case that Tonnex had reproduced a substantial part of the March 2008 CSV file. The defensive case that Tonnex advanced in this regard rested on the twin propositions that Tonnex’s compatibility charts were independently created by its employees (Mr Rendell and Mr Furtado) and that no reference had been made by them to Dynamic’s price lists and compatibility charts in undertaking that task. However, I have found that large parts of the Tonnex compatibility charts in question were copied indirectly from the March 2008 CSV file by a process which involved “cutting and pasting” from the compatibility chart on Dynamic’s website: see my reasons at [132] and [133]. Dynamic submits that this conduct was deliberate and cannot be explained away by inadvertence.

17    I have yet to determine Dynamic’s claim that, for the purposes of s 115(4) of the Copyright Act, this was a case of flagrant infringement. Nevertheless, my findings on infringement stand as a complete rejection of the particular case of independent creation that was put forward by Tonnex. In these circumstances there is sound reason to conclude that Tonnex’s conduct has been accompanied by, at the very least, a marked lack of understanding of the nature of conduct that constitutes copyright infringement and of Dynamic’s property rights in that regard. In this connection, Dynamic points to the absence, even now, of any acknowledgement by Tonnex of the copying that I have found to have taken place.

18    A further matter relates to Tonnex’s use of the “Cartridge Finder” system. Tonnex’s use of that system is pursuant to a written agreement with an entity that is described only as IPR/Imaging Resources Pty Ltd (IPR). There is no evidence about the identity of this entity or its business beyond the agreement it has with Tonnex. The written agreement, which appears to have been entered into before the first hearing, requires Tonnex to supply IPR with a copy of its “Reseller Price List”. In its written outline of submissions dated 3 June 2011, Dynamic pointed to the possibility that compliance with this obligation may have involved the provision by Tonnex of infringing material to IPR. Dynamic points to the fact that no evidence has been put forward from IPR itself to demonstrate that it has not, in compiling information for the benefit of Tonnex, used Tonnex’s price lists which I have found to contain infringing reproductions of the March 2008 CSV file. Tonnex did not seek, in either evidence or submissions, to address this concern.

19    I do not propose to speculate about what material may or may not have been given by Tonnex to IPR, or what material may or may not have been used by IPR to provide the “Cartridge Finder” system to Tonnex. The mere fact that Tonnex is currently using the “Cartridge Finder” system does not dissuade me from the view that there remains some risk of infringement and that this is an appropriate case for the granting of injunctive relief.

20    Tonnex does not take issue with the form of the injunctions that are sought. However, as I have noted, it submits that, in lieu of granting injunctions, the Court should accept the undertakings that have been proffered. Those undertakings are substantially in the same form as the injunctions that Dynamic seeks. They do have, however, the additional feature that personal undertakings are also proffered by Messrs Solomon and Kozman. Those undertakings will be enforceable, if need be, in contempt proceedings in the same fashion as if injunctions were granted. In my view the appropriate course is to accept the undertakings that have been proffered. If that is done, the need for injunctive relief falls away.

21    As to the question of delivery up and destruction or removal, Tonnex has expressed its preparedness to destroy (under the supervision and to the satisfaction of its solicitor, Mr Szmerling) all copies of the infringing compatibility charts in its possession. The real issue between the parties is whether that process should be undertaken informally, as Tonnex contends it should be, or whether an order should be made, as Dynamic seeks. I am persuaded that I should make the order substantially in the form that Dynamic seeks, providing, as it will, the particular sanction of proceedings for contempt should there be non-compliance. In my view this will also serve to reinforce, for Tonnex, the significance of its infringing acts and the need for those acts to be completely remedied. I have, however, modified the drafting of the order to remove some aspects of apparent duplication in its terms and to make clear that its requirements are to take place under the supervision of its solicitor.

Relief relating to Trade Practices Act contraventions

22    I am satisfied that it is appropriate to grant the declarations that Dynamic seeks. The contraventions which Dynamic alleged, and which have now been found, were, once again, matters that were strenuously contested in the first hearing. It is recognised that proceedings under the Trade Practices Act have a special character involving the protection of the public and, more specifically in the present case, the protection of consumers. This special feature is not diminished simply because the proceedings for contravention are brought by a competitor whose primary objective may be the protection of private commercial interests: World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 186-187. Tonnex’s conduct had the capacity to mislead or deceive resellers and others lower in the chain of distribution in ways that were likely to be important to their interests. It is appropriate that declarations be made to mark, in a public way, the fact that these contraventions have occurred. Once again, Tonnex advances no reason why these declarations should not be made.

23    The special character of proceedings under the Trade Practices Act is also relevant to the question of whether injunctive relief should be granted. The statutory injunction for which s 80 of the Trade Practices Act provides is not one that is limited by the characteristics of the injunction developed by courts of equity. Rather, it is a modification of that remedy, although traditional equitable principles may still assist in informing the Court how the discretion to grant injunctive relief might best be exercised in particular circumstances: Ricegrowers’ Co-Operative Limited v Howling Success Australia Pty Limited (1987) ATPR ¶ 40-778 at 48,492; ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 248 at 256-257 and 263-264. Section 80 itself recognises that this form of remedy can be granted, for example, whether or not it appears to the Court that a person intends to engage again, or to continue to engage, in contravening conduct or whether or not there is imminent danger of substantial damage to any person because of the contravening conduct: see s 80(4)(a) and (c). Such relief can be granted to deter future similar conduct: ICI at [268]. Such relief can also be granted to mark the Court’s disapproval of particular conduct: Trade Practices Commission v Mobil Oil Australia Ltd (1985) 4 FCR 296 at 300; Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491 at [217].

24    In the present case Tonnex submits that it is unnecessary to grant injunctive relief because no further contravention is threatened or likely. It refers to the steps that it has already taken to remove relevant offending material from its advertising and marketing publications, in whatever form those publications might exist. It also points to the fact that the tax free representation and the Australian jobs representation have ceased to be made, and have not been made for significant periods of time.

25    On the other hand, Dynamic submits that the evidence has revealed that Tonnex has engaged in conduct that shows that it has no real awareness of the boundaries of misleading or deceptive conduct. It submits that neither Dynamic nor the public should be put at risk of, and Tonnex should not be permitted to proceed on, what Dynamic referred to as Tonnex’s idiosyncratic views about whether the representations it has made are justified or will, in future circumstances, be justified. Dynamic submits that the evidence adduced on behalf of Tonnex in the first hearing suggests that the Court can have no confidence that Tonnex will not engage in contravening conduct in the same manner in the future.

26    Whilst I accept that Tonnex has taken particular steps to remove offending material and that, certainly in the case of the tax free representation and the Australian jobs representation, there has been no repetition of the contravening conduct for some time, I am satisfied that, but for the undertakings that have been proffered by Messrs Solomon and Kozman, this is an appropriate case for the granting of injunctive relief.

27    In my view there has been a pattern of conduct by Tonnex that shows a somewhat cavalier approach to its legal obligation to adhere to the norms of conduct that ss 52 and 53 of the Trade Practices Act prescribe. In the particular instances raised by this matter, it has exhibited a preparedness to pursue its marketing objectives even if those objectives involve a risk of misleading consumers. Such conduct is not to be countenanced. The granting of the injunctions that Dynamic seeks would reinforce the need for Tonnex to remain vigilant to ensure that its conduct does not again contravene ss 52 and 53 of the Trade Practices Act.

28    The undertakings proffered by Messrs Solomon and Kozman are substantially in the same form as the injunctions that Dynamic seeks. Once again, they have the additional feature that the undertakings are offered personally as well as on behalf of Tonnex itself. These undertaking should be accepted in lieu of injunctions. The same objectives will be achieved by accepting the undertakings. Vigilance will be secured because non-compliance will be punishable by proceedings for contempt. Indeed, the fact that personal undertakings are also offered will provide an extra measure of protection in that regard.

29    As I have noted, Dynamic also seeks orders for corrective advertising and that Tonnex introduce and administer a compliance program. I am not persuaded that this relief should be granted.

30    In the present case, there is much to be said for the view that the contraventions I have found should be brought to the attention of Tonnex’s customers by means involving direct action by Tonnex itself. However, that course should only be adopted if, in doing so, those contraventions can be fairly and accurately identified in a way that usefully serves the ends of consumer protection. I am not satisfied that those objectives can be readily achieved in the present case.

31    First, the Court’s findings cover a range of representations. Some of these ceased to have been made some considerable time ago. I am not satisfied that there is any utility, for example, in requiring Tonnex to give notice of contraventions in relation to conduct which, in the case of the Australian jobs representation, ceased well over two years ago and, in the case of the tax free representation, ceased nearly two years ago. I accept Tonnex’s submission that, for its customers, there may be no clear link between the correction and the offending publication. Indeed the correction that is sought may well wrongly suggest to some customers that the conduct referred to is of more recent origin, and thus itself be potentially misleading or deceptive. There is considerable force in Tonnex’s submission that notification in relation to these contraventions really serves no useful purpose other than to mete out punishment to Tonnex without any accompanying consumer benefit.

32    On the other hand, it would not be appropriate, in my view, to order a notice to be given that refers to some, but not all, of the contraventions that were found. This would give an incomplete picture of the Court’s findings and may present a confusing picture of those findings, particularly where the notice, as here sought, directs attention to the Court’s reasons for judgment, including by way of hyperlink in respect of the notice which Dynamic seeks to have published electronically. Persons who read the reasons for judgment may be caused to wonder why reference is made in the notice to some contraventions and not to others and, perhaps, may speculate that, contrary to the fact, the Court considers some contraventions to be of lesser significance than others.

33    Secondly, the contraventions constituted by the making of the genuineness representation and the second reliability representation need to be understood in their proper context. The nature and significance of those contraventions can only really be understood against the background of all the findings I have made and my reasons for making the findings. I would not assume that, universally, recipients of the notice which Dynamic seeks to have Tonnex publish would fully inform themselves on those matters by reading the reasons for judgment. I accept Tonnex’s submission that there is a likelihood that some recipients of the notice that Dynamic proposes would mistakenly conclude that there has been a finding by the Court that Tonnex has been found guilty of supplying counterfeit goods, when plainly that was not the case.

34    I have considered whether the notice that Dynamic proposes could be readily modified in a way that would avoid any significant risk of misapprehension of the Court’s findings. I am not satisfied that this can be readily done other than by a somewhat detailed summary of my reasons for judgment. Leaving aside whether it is at all appropriate to even embark upon that task, such a notice would be deprived of its utility as a fair, accurate and readily-understood, but nevertheless succinct, notification of the Court’s findings and conclusions.

35    The order that Tonnex introduce and administer a compliance program raises other questions. The first question is one of proportionality, particularly where such relief is sought at the behest of a competitor. When sought by a competitor, one is left with the uneasy feeling that the relief is sought purely as a means of punishment. I am not satisfied that relief of this kind is warranted in the particular circumstances of this case.

36    The second question relates to the implementation of the program that Dynamic seeks to be ordered. That implementation is one involving supervision of the compliance program by Dynamic itself. In my view it would be wholly inappropriate to make such an order. I accept Tonnex’s submission that it would be both onerous and undesirable to maintain Tonnex in what would undoubtedly be a position of subservient accountability to Dynamic. Indeed the making of such an order would not only involve an unwarranted intrusion by one competitor into the business affairs of another but, in circumstances where the parties are already in litigation, would be likely to foment further dispute between them.

Generally

37    The remaining orders that Dynamic seeks provide for the verification of compliance with other orders that it proposes. It is appropriate that those orders be made, substantially in the form sought.

Leave to appeal

38    Tonnex seeks leave to appeal confined to the question of the subsistence of copyright in the March 2008 CSV File. It has provided a draft notice of appeal: see Exhibit 2. I have indicated my preparedness to grant that leave. I will also grant a stay of those orders that I propose to make relating to the destruction on oath, etc. of infringing reproductions, as these orders are clearly dependent on the finding of copyright subsistence in the March 2008 CSV file.

Associate:

Dated:    16 June 2011