FEDERAL COURT OF AUSTRALIA

Corby v Allen & Unwin Pty Limited [2013] FCA 370

1.    In these orders:

1.1    The book known as Sins of the Father, first published in Australia in 2011 by the respondent, is referred to as “the book”.

1.2    The photographs which are reproduced between pages 194 and 195 of the book are referred to as “the published photographs”.

1.3    The photographs which are the subject of the proceedings are referred to as “the subject photographs”.

1.4    The photograph which appears at the bottom of the sixth page of the published photographs is referred to as “photograph 1”.

1.5    The photograph which appears at the top right of the fourth page of the published photographs is referred to as “photograph 2”.

1.6    The photograph which appears at the bottom of the fourth page of the published photographs is referred to as “photograph 3”.

1.7    The photograph which appears at the bottom of the fifth page of the published photographs is referred to as “photograph 4”.

1.8    The photograph which appears at the top of the tenth page of the published photographs is referred to as “photograph 5”.

THE COURT DECLARES THAT:

2.    By reproducing the subject photographs in the book, the respondent:

2.1    infringed the copyright of the third applicant in photograph 1;

2.2    infringed the copyright of the second applicant in photograph 2;

2.3    infringed the copyright of the third applicant in photograph 3;

2.4    infringed the copyright of the first applicant in photograph 4;

2.5    infringed the copyright interest of the third applicant in photograph 5.

3.    When reproducing the subject photographs in the book, the respondent:

3.1    infringed the moral right of the third applicant, under the Copyright Act 1968 (Cth), to attribution as the author of photograph 1;

3.2    infringed the moral right of the second applicant, under the Copyright Act 1968 (Cth), to the attribution as the author of photograph 2;

3.3    infringed the moral right of the third applicant, under the Copyright Act 1968 (Cth), to attribution as the author of photograph 3;

3.4    infringed the moral right of the first applicant, under the Copyright Act 1968 (Cth), to attribution as the author of photograph 4.

THE COURT ORDERS THAT:

4.    None of the subject photographs be reproduced hereafter in the book.

5.    All copies of the book in the possession of the respondent at the date of these orders be delivered to the solicitors for the applicants within seven days for destruction.

6.    An affidavit be filed and served by the solicitors of the applicant within a further seven days deposing to the method, time and place of destruction.

7.    The respondent pay the first applicant $2,000 as damages for infringement of her copyright in photograph 4.

8.    The respondent pay the second applicant $5,000 as damages for infringement of his copyright in photograph 2.

9.    The respondent pay the third applicant:

9.1    $500 as damages for infringement of her copyright in photograph 1;

9.2    $1,000 as damages for infringement of her copyright in photograph 3;

9.3    $750 as damages for infringement of her copyright interest in photograph 5.

10.    The respondent pay the applicants $45,000 as additional damages for infringement of copyright.

11.    The respondent pay the amounts of damages and additional damages within 21 days.

12.    Costs are reserved.

THE COURT DIRECTS THAT:

13.    Any application for costs be filed and served by 4:00 pm on 31 May 2013.

14.    In the absence of consent, the matter be listed for further directions at 9:30 am on 21 June 2013.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1    These proceedings concern five photographs published in a book titled Sins of the Father (“the book”). The respondent to the proceedings is the publisher of the book.

2    The applicants are, respectively, the sister (Mercedes Corby), brother (Michael Corby) and mother (Rosleigh Rose) of Schapelle Corby, about whose arrest and imprisonment in Bali the book was written. Their complaint is that copyright in five particular photographs under the Copyright Act 1968 (Cth) (“Copyright Act”) has been infringed by the respondent and, in the case of four of the photographs, so also has the moral right of attribution of the author under the Copyright Act.

3    The author of the book is Eamonn Duff, a senior journalist who was commissioned to write it. Mr Duff is not a party to the proceedings. Mr Duff was required under his contractual arrangements with the respondent to gather photographs to accompany the book, but it was not his responsibility to decide which photographs would be reproduced with the book. Those decisions were made by the respondent.

4    There were 37 photographs published with the book. They are contained in 16 pages of photographs which appear in about the middle of the book at the beginning of Chapter 20 between pages 194 and 195 of the main text. The published photographs represent a point of interest in their own right independent, in some ways, of the actual text of the book. Nevertheless, they are related to the text and clearly intended to contribute to an understanding of, and interest in, the discussion in the book. It is, in my view, not realistic to isolate their publication from the general theme of the book, which was condemnatory of both Schapelle Corby and her father Mick Corby. I take the same view about the five particular photographs which are the subject of the proceedings.

5    The book sells for $35 a copy. It was published in November 2011. By 27 March 2013, 44,006 printed copies had been sold.

INFRINGEMENT OF COPYRIGHT

The statutory scheme

6    The Copyright Act protects the exclusive right of an owner of copyright in an artistic work to do “an act comprised in the copyright” (s 13(1) of the Copyright Act). A photograph is a work in which copyright subsists. The initial owner of copyright in a photograph is the “author” of the photograph (s 35(2) of the Copyright Act). The author of a photograph is (generally) the person who took the photograph (s 10 of the Copyright Act). Two of the photographs were first published in Indonesia, but that fact does not remove the protection of the Copyright Act with respect to their reproduction in Australia as, in each case, either the author was an Australian citizen and resident or protection of copyright is extended by regulation. It is not necessary in the present case to explore that question further.

7    One act comprised in the copyright of a photograph is the act of reproducing it in a material form (s 31(a)(i) of the Copyright Act). The owner of copyright in a photograph (initially, at least, the person who takes the photograph) has the exclusive right to reproduce it, or permit its reproduction.

8    Ownership of copyright may be assigned or transmitted by will (inheritance). In the present case, ownership of copyright in one of the photographs has been passed by inheritance to four people – Rosleigh Rose being one of them. She is now a 25% owner of the copyright in that photograph, holding her share as a tenant in common. A co-owner of copyright holding an interest in copyright as a tenant in common may sue independently of other co-owners for protection of that interest (see Acorn Computers Ltd v MCS Microcomputer Systems Pty Ltd (1984) 4 IPR 214 at 221; Dixon Projects Pty Ltd v Masterton Homes Pty Ltd (1996) 36 IPR 136 at 141). Copyright in the other photographs remains in the ownership of their authors – i.e. the person who took the photograph. Copyright in one each of the remaining photographs is owned by Mercedes Corby and Michael Corby. Copyright in the other two photographs remains owned by Rosleigh Rose.

9    An infringement occurs under s 36 of the Copyright Act if an act comprised in the copyright is done without the licence of the owner of the copyright. Section 36(1) of the Copyright Act provides as follows:

36    Infringement by doing acts comprised in the copyright

(1)    Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.

10    It is necessary in the present case, therefore, for the applicants to show that the respondent had no permission from the relevant owner of copyright to reproduce the photographs in question (see also Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88). Correspondingly, if the respondent can show that it did have such permission that would be a complete answer to an allegation of infringement of copyright. One argument upon which the respondent has relied in the proceedings is that the use of each of the five photographs in the book was permitted by a licence upon which the respondent or Mr Duff was entitled to rely.

11    In Interstate Parcel Express Co Pty Ltd v Time-Life International (Nederlands) BV (1977) 138 CLR 534, Gibbs J pointed out that (at 539):

The word “licence”…appears to mean no more than “consent”, and a licence for the purpose of those sections need not result from a formal grant, but may be given orally or be implied by conduct.

12    In Computermate Products (Aust) Pty Ltd v Ozi-Soft Pty Ltd (1988) 20 FCR 46 at 51, a Full Court of this Court rejected the idea that a licence need be a contractual licence.

13    In Banks v Transport Regulation Board (Victoria) (1968) 119 CLR 222, Barwick CJ said (at 230):

…a mere licence does not create any estate or interest in the property to which it relates: it only makes an act lawful which without it would be unlawful…

14    It is therefore not necessary for the respondent to point to any particular formality in order to defend itself. It would seem that any effective, traceable permission or consent would suffice. However, the notion of consent must be given context. It must, in my respectful opinion, signify assent to the act involved or be the subject of a presumption which would attribute that quality to it (see e.g. s 15 of the Copyright Act).

15    The examination which must be carried out in the present case concerns whether the respondent did not have permission to reproduce the five photographs in the book. The respondent did not have direct permission from any of the copyright owners in the present case. In practical terms (without disregarding the onus on the applicants), the question to be examined in the present case is whether the respondent could reproduce the photographs in the book without asking the permission of the copyright owners for the reason that, at some earlier point in time, the copyright owners had given express or implied permission to someone else to reproduce the photographs for some earlier purpose (i.e. one unconnected with production of the book).

16    As will be seen, in my view it is not open to the respondent in the present case to rely upon any such circumstance with respect to any of the five photographs. The respondent is therefore unable to answer the unchallenged evidence of each of the applicants that they gave no permission to reproduce the photograph(s), in which they owned copyright, in the book. Additionally, on the facts of the present case, the suggested implied licences on which the respondent chose to rely (if they had existed at all) were unmistakeably revoked before the book was printed again earlier this year. When that happened, after the proceedings had been commenced, an infringement of copyright undeniably occurred.

17    I shall outline the statutory arrangements concerning protection of moral rights later in the judgment, after I have dealt with the question of copyright infringement.

The book

18    After leaving from Brisbane, and travelling via Sydney, Schapelle Corby was arrested on arrival in Indonesia on 8 October 2004 in possession of 4.2 kg of marijuana, which was in a boogie board bag. Her arrest and subsequent trial received a good deal of media attention and has led to the publication of a number of books.

19    The book written by Mr Duff displays, on its back cover, one of the photographs at issue in the present case. The text accompanying the photograph on the back cover of the book says the following:

A reckless father, his dark past, an Adelaide drug trafficker and the Gold Coast beauty school dropout who kept her mouth shut. This is the explosive untold story of Schapelle Corby and how she took the rap for her father’s drug syndicate.

The result of a three year investigation, Sins of the Father returns to the beginning of Australia’s most famous drug case, to a time when nobody had ever heard the name Schapelle Corby. Finally, the missing pieces of the jigsaw fall into place as we are led, step by step, through the important weeks, days and hours leading up to her dramatic arrest.

Shedding new light on her long-held claims of innocence, this is the book Schapelle’s army of supporters do not want you to read.

20    The book sets out to make a case that in 2004, Mick Corby (Schapelle Corby’s father, who lived in Queensland) was an established drug dealer and trafficker, who was supplied from South Australia by Malcolm McCauley, a person shown in one of the photographs. The mechanism of this suggested arrangement, and the people allegedly involved, are described in the book in some detail.

21    Mick Corby is alleged to have sent regular drug shipments from Brisbane to Bali, when kilos of marijuana would be packed with $1,000 in cash to facilitate passage through customs.

22    The book alleges that the marijuana in Schapelle Corby’s possession when she was arrested was originally despatched by Malcolm McCauley from South Australia on 6 October 2004 and on receipt by Mick Corby was placed in the boogie board bag, having been carefully shaped to conform to the boogie board. The author asserts that Schapelle Corby knew she was carrying marijuana for her father, and that her denials were aimed at the protection of her father and those for whom the drugs were intended, probably at a significant ultimate cost to herself.

23    Mr Duff was commissioned to write the book in 2008. By that time, he had written articles for the Fairfax press suggesting that Schapelle Corby was guilty and that Mick Corby was implicated. The book he was commissioned to write was originally to be called The Fall Girl. Some advance publicity was given to it in 2010. Each of the applicants apparently took the view that the promotional material was defamatory of him or her and protested. The protests yielded formal written apologies. However, work on the book continued, its title was changed and elements of the book were altered. It was finally published in November 2011.

24    It is clear on the evidence that, by the time of publication of the book in 2011, the applicants held the view that the efforts of Mr Duff and the respondent were antithetical to their own interests and the interests and reputation of other members of the family, including Schapelle Corby and Mick Corby. Mr Duff and the respondent knew that none of the applicants would co-operate in any way in the publication of the book.

The five photographs

25    The five photographs which are the subject of the proceedings have come to be called the “Santa” photograph, the “Broadwater” photograph, the “airport” photograph, the “Polda” photograph and the “Kuta” photograph. They seem to have been taken in that chronological order and I shall refer to them by those names.

The Santa photograph

26    The Santa photograph appears on the sixth page of the pages of photographs published with the book. It was taken in 1985 by Rosleigh Rose, who remains the owner of copyright in the photograph. The photograph shows a young, smiling Schapelle Corby pictured with two of her cousins who are on the knee of a department store Santa Clause. Schapelle is standing beside them. The caption to the photograph reads as follows:

Meeting Father Christmas. Mick Corby showed the author this photo of an excited Schapelle (far right) during an interview in 2005 and then took it to Bali several days later to lift his daughter’s flagging spirits. Mick said, ‘I found it while I was packing and the moment she sees it, I know it’s going to light up her face. She has such a beautiful smile, and this will bring it back.’ (Supplied)

27    When asked what “supplied” meant, Mr Duff replied:

“Supplied” means when it has been supplied to a photographer so somebody, a third party, has given that photograph to the photographer for use in a paper or for another media outlet.

28    Mr Duff’s affidavit evidence was that the Santa photograph was supplied to him by Mick Corby in 2005, when he went to speak with Mick Corby for the purpose of an article he was writing for the Fairfax news media. The article appeared on 3 April 2005. It dealt with how Mick Corby, dying of prostate cancer, proposed to make the trip to Bali to comfort and support his daughter. The article made no suggestion that Schapelle Corby was guilty or that her father was implicated in the importation of drugs into Indonesia.

29    Mr Duff said that he believed at this time that Mr Corby had taken the photograph and that it belonged to him. Whatever the foundation for that belief it will not, for the reasons which follow, support any suggestion that Mr Corby gave permission to use the photograph in any way which could have represented a licence to use it in connection with the book.

30    Mr Duff’s oral evidence-in-chief about his meeting with Mick Corby included the following:

I met Mr Corby; I spoke to Mr Corby; I interviewed Mr Corby. I asked if there were pictures that I might be able to use. He supplied that picture.

and:

It was given to me so that I could take it away for the use of a story.

It wasn’t taken away, was it?---No.

No. It was given to you so that Mr Holland, who was with you, could take a picture of it?---Yes.

Which is what he did?---Yes.

And it was then given back to Mr Corby?---Yes.

and:

MS CHRYSANTHOU: You didn’t interview Mick Corby for this book?

THE WITNESS: No, I didn’t. I first interviewed him in my capacity as a journalist.

MS CHRYSANTHOU: He died before you even started writing this book?---Correct.

…

MS CHRYSANTHOU: And the matter that his Honour raised a moment ago was the interview you did with Mick Corby in about 2005?---Yes.

And that was when you were writing an article for Fairfax about him travelling to see

Schapelle in Bali?---Yes.

31    Any “supply” of the Santa photograph by Mick Corby (to the extent that might be legally relevant) was limited, in my view, by the context just described – i.e. for use at that time in connection with an article for the Fairfax press concerning the matter about which Mick Corby was being interviewed, namely a proposed trip to Bali to see his daughter. Mick Corby did not (even if he could) authorise use of the photograph in a book years later, not then commissioned or even in contemplation.

32    In any event, by the time the book was in production Mick Corby had died and, if he had been the copyright owner, ownership of copyright had passed to someone else. Mr Duff did not know who the owner was, and made no enquiries.

33    Mr Duff’s evidence about preparation for the book was that in 2010 he was supplied a copy of this photograph, and others, by Mr Stephen Holland (a Fairfax photographer) for possible use in the book. When he sought copies of photographs from Mr Holland in 2010 for the purpose of considering their possible reproduction in the book, Mr Holland sent a number of photographs to him as attachments to an email dated 23 June 2010. The email said the following:

I think I have most of what you need, here are small proofs, just off to the airport to drop my wife off, give me a call after 7.30 tonight or tomorrow morning, I’m sure a struggling photographer can help out a struggling journo. Not sure about the copyright on the supplied photos,

Steve

34    Mr Holland did not give evidence. There is no basis for any suggestion he had any licence concerning the Santa photograph extending beyond what Mick Corby purported to permit in 2005.

35    The owner of copyright in the photograph, Rosleigh Rose, gave unchallenged evidence that she did not authorise Mick Corby to grant a licence in the Santa photograph to any person and that she had not authorised him to provide a copy of the photograph to Mr Duff or the respondent. Her authorship of the photograph was unchallenged. Her ownership of copyright was unchallenged. Her evidence that she had granted no licence was unchallenged by cross-examination or otherwise. In such circumstances there is no foundation, in my view, for any suggestion that the respondent or Mr Duff had a licence to use the Santa photograph in connection with the publication of the book. The preponderance of evidence clearly shows that there was no relevant permission or consent to the reproduction of the Santa photograph in the book.

The Broadwater photograph

36    This photograph appears on the fourth page of the photographs. It is accompanied by the following caption:

Happier days. Mick Corby and Schapelle proudly pose for a beachside snap in Queensland. (Supplied)

37    This photograph is also the one which appears on the back cover of the book, beside the text set out earlier.

38    The photograph shows Mick Corby in a dark singlet and shorts, bare-footed and holding a stubby of beer with Schapelle Corby behind him, leaning into his shoulder, with one hand on her hip and the other arm draped over her father’s shoulder. She appears to be wearing a bikini top with a towel around her hips and lower body. They are standing on a sandy beach.

39    This photograph was also used in connection with the article by Mr Duff which was published on 3 April 2005 when he described Mick Corby’s desire to go to see his daughter, Schapelle, in Indonesia. Mr Duff said in an affidavit that he obtained the Broadwater photograph from a Fairfax (Sydney Morning Herald) photographer, Mr Brendan Esposito, in 2010, but that seems not to be strictly accurate. Mr Duff gave affidavit evidence of statements made by Mr Esposito about the photograph in 2010, but those statements were not admitted in evidence as proof of the truth of anything which Mr Esposito said. Mr Duff’s oral evidence was that he then obtained a copy of the photograph from the Fairfax picture archive some time in 2010.

40    Documents showing how the photograph was recorded in the Fairfax picture archive were put into evidence. In the Fairfax picture archive, the photograph seems to have appeared in three places, in each case associated with the name of Mr Esposito as photographer. One of those entries in the archive bears a copyright warning twice in the following terms:

© COPYRIGHT WARNING. This is not a Fairfax copyright image. This is a supplied image. The image may only to [sic] be reused in accordance with the agreement under which the image was supplied.

41    Mr Duff’s faint efforts to suggest that the photograph could be re-used because it had been supplied to Mr Esposito were extremely unconvincing. Mr Duff knew that Mr Esposito was not the owner of the copyright in the Broadwater photograph. Based on what Mr Esposito told him, Mr Duff thought it had been obtained from Mercedes Corby. He made no attempt to contact Mercedes Corby about use of the photograph. Indeed, he accepted that he did not make any enquiry as to who owned copyright in the Broadwater photograph.

42    The owner of copyright in the Broadwater photograph is Michael Corby. In his evidence, he stated that he gave Mercedes Corby permission to use the photograph for a book authored by Schapelle Corby entitled Schapelle: My Story. He said he thought he had never met Mr Duff and he neither supplied him with a copy of the photograph nor licensed use of it to him. He said he had never been asked for permission by Mr Duff or the respondent to use the photograph and he had never authorised its use by either of them.

43    Mercedes Corby gave some evidence which dealt with a suggestion that she had provided the photograph for copying by Mr Esposito. Her evidence was that she had no recollection of doing so. No evidence was given by Mr Esposito, or by any other person, that Mercedes Corby had supplied the photograph to him.

44    There was, accordingly, no evidence about the circumstances under which the image was supplied to Mr Esposito. There was no evidence to support any conclusion that Michael Corby, the owner of the copyright, had licensed the photograph to Mr Esposito, Fairfax, Mr Duff or the respondent (which is an organisation independent from Fairfax). There was no direct or indirect challenge to Michael Corby’s evidence that he had granted no licence in relation to the photograph.

45    Moreover, although Mr Duff believed that Mr Esposito had obtained permission to use the photograph at one point in time on behalf of Fairfax, the use proposed by Mr Duff and the respondent was not use on behalf of Fairfax and had no connection with any purpose for which the photograph had originally been supplied. Mr Duff was compelled to accept in cross-examination that he did not believe that Mr Esposito had permission to use the photograph “on behalf of anyone in the world”.

46    Again, the preponderance of the evidence is that no relevant licence was granted which would permit reproduction of this photograph in the book. Mr Duff, for his part at least, expressly accepted in his oral evidence that he knew that somebody’s copyright in the Broadwater photograph was being infringed when it was reproduced in the book.

The airport photograph

47    This photograph also appears on the fourth page of the photographs published in the book, under the Broadwater photograph. It also was used prominently in connection with Mr Duff’s article published on 3 April 2005 about Mick Corby’s intention to travel to Indonesia to see Schapelle Corby. The airport photograph was taken at Brisbane airport on the morning that Schapelle Corby left for Indonesia. The photograph shows Schapelle Corby and two female friends smiling happily, accompanied by her step-brother. The caption accompanying the airport photograph is as follows:

Oblivious to what lies ahead. Happy travellers (from left) Katrina Richards, Schapelle Corby, Ally McComb and Schapelle’s half brother, James Kisina, pose at Brisbane Airport before their flight to Bali. Seven years on, it remains the last picture of Schapelle taken in Australia. (Supplied)

48    The airport photograph was taken by Rosleigh Rose who is therefore the author and who remains the owner of the copyright. Mr Duff knew that Rosleigh Rose had taken the photograph. In the book, Mr Duff wrote:

Rosleigh Rose has always been her family’s unofficial photographer. Wherever she went her little camera went with her and no family event was ever deemed too boring to document. So it wasn’t particularly unusual that Ros took a happy snap of Schapelle and her three travelling companions at Brisbane Airport before they boarded QF501 bound for Sydney. These days, looking at that photo can easily bring Ros to tears. She had unconsciously captured a scene that literally froze her daughter’s last moment of freedom in Australia.

49    Mr Duff also wrote:

On the back of the photograph, Ros wrote: ‘8th Oct. All happy go to Bali.’ The photograph was later handed out to the media as proof that Schapelle and the others were all feeling relaxed as they set off on their tropical holiday. The photo of smiling Schapelle was not the face of a stressed-out drug trafficker.

50    Each of the applicants accepted in their evidence that the airport photograph had been reproduced in the Australian media on many occasions. The evidence of each of the three applicants was that after Schapelle Corby’s arrest they took the view that publication of this particular photograph would assist to promote Schapelle Corby’s cause. It was referred to frequently during the proceedings as conveying an image of an “innocent” Australian girl. The applicants in their evidence seemed happy to accept that they had been prepared to see it used in connection with the promotion of that idea.

51    A laminated copy of the airport photograph was displayed at a fish and chip shop which was conducted by Michael Corby at about this time. Michael Corby said in his evidence that he had allowed media representatives to take a copy of the laminated photograph and use the photograph in newspaper articles about Schapelle Corby. He denied ever having given permission for Mr Holland or anyone else to use the photograph as they wished or without restriction.

52    This photograph was another supplied to Mr Duff by Mr Holland with his email of 23 June 2010. Mr Duff gave some hearsay affidavit evidence about things that were said to him by Mr Holland at the time the photographs were supplied and things said to him by Ms Janine Hosking, the producer of a documentary entitled “The Hidden Truth”. That evidence was not admitted as any proof of the truth of the statements made to Mr Duff by Mr Holland or Ms Hosking. The evidentiary position, therefore, must be evaluated without those hearsay statements being taken into account.

53    Apart from the concession by Michael Corby that he had indicated his agreement to media representatives taking a copy photograph of the airport photograph (a matter having no immediate legal significance in its own right because Michael Corby was not the owner of the copyright in the photograph), the owner of copyright in the photograph, Rosleigh Rose, gave unchallenged evidence that she did not authorise Mr Holland to licence (or further licence) the airport photograph or provide a copy of it to Mr Duff or the respondent. Rosleigh Rose also gave evidence that she had never licensed the copyright in the airport photograph to the respondent or Mr Duff or authorised the respondent or Mr Duff to use the airport photograph for publication in the book or at all.

54    Mr Duff denied that he knowingly infringed Rosleigh Rose’s copyright in the airport photograph, but the basis for the denial was his assertion that the airport photograph had been tendered in court proceedings in Indonesia. When challenged, he said he relied on media reports to that effect but made no further check. There is no evidence that the airport photograph was tendered in court proceedings in Indonesia. I am not prepared to simply assume that as a fact.

55    There is no evidence to sustain any conclusion, in my view, that any licence, express or implied, arose in Mr Holland, his employer Fairfax, Mr Duff or the respondent so far as use of the airport photograph in the book was concerned. Again, the preponderance of evidence is that there was no such licence.

The Polda photograph

56    This photograph appears on the fifth page of the photographs published in the book, opposite the airport photograph. It shows Schapelle Corby and her mother, Rosleigh Rose, in the Polda police holding cell in Bali. Schapelle Corby is holding a fluffy toy monkey in her left hand and a photograph in her right hand. The photograph that Schapelle Corby is holding shows her with a friend and her god-daughter. Rosleigh Rose is standing a little to her right and behind her giving a thumbs-up sign. On the wall of the holding cell a little further to their right is a smiley face with the words “Be Positive”. The photograph has the following (incorrect) caption:

Staying positive. Schapelle receives a welcome visit from her mother Rosleigh Rose in Kerobokan Prison in 2005.

57    This photograph was taken by Mercedes Corby who is therefore the author of it and remains the owner of copyright in it. There appears to be no serious issue (although Rosleigh Rose cannot recall this actually happening) that the photograph was probably given by Rosleigh Rose to Katrina Richards, Schapelle Corby’s friend who appeared with her in the airport photograph. At some stage Katrina Richards appears to have co-operated with Mr Holland in the provision of photographs to assist Schapelle Corby’s cause in 2005. Mr Duff’s affidavit evidence attributed some statements to Mr Holland to the effect that he (Mr Holland) had been given the photograph by Katrina Richards and that no restrictions had been placed on it and that he was free to use it as he saw fit. Those hearsay statements were not admitted into evidence as proof of the truth of them. In any event, Katrina Richards was neither the author of the photograph nor the owner of copyright in it. There is no evidence to the effect that she was herself given any licence to deal with the copyright or to reproduce the photograph.

58    Mercedes Corby gave evidence that she did not authorise Katrina Richards to grant a licence in the photograph to any person and was not aware that Katrina Richards had given a copy to Mr Holland. Mercedes Corby said that she had never authorised Mr Holland to licence the copyright and did not believe that she had ever met him.

59    Rosleigh Rose accepted in her evidence that she might have given Katrina Richards a copy of this photograph for her own personal use, but testified that she did not authorise her to provide the photograph to anybody else or to licence use of the photograph to anybody else.

60    The Polda photograph is one of the photographs provided by Mr Holland to Mr Duff in 2010, accompanied by the reservation which was expressed in his email of 23 June 2010. Mr Duff accepted in his evidence that he took no steps to find out who the author of the Polda photograph might be. He knew it had never been publicly reproduced before it appeared in the book. He was informed by Mr Holland that the photograph had been supplied by Katrina Richards, but he made no attempt to contact her. Mr Duff accepted that he knew he had no permission to reproduce the photograph.

61    In my view, the evidence will not support any conclusion that Mr Duff or the respondent had any licence to reproduce the Polda photograph. Again, the preponderance of evidence is that there was no such licence.

62    Mr Duff and the respondent appear to have been conscious of the fact that a photograph of Schapelle Corby taken inside prison would be regarded as commercially valuable by the Corby family, and by the media more generally. In the book, the following was said:

Inside, Schapelle detested posing for photographs and was paranoid that any pictures of her taken by strangers could be on-sold to magazines and newspapers prepared to pay a small fortune for any candid shots of her in jail. Ever mindful of Schapelle’s celebrity, her family ensured that the only photos taken of her were usually by trusted friends and family, or media organisations that had paid for the privilege. …

63    Although the Polda photograph is wrongly described by its caption as taken at Kerobokan Prison, the observation above no doubt applied directly to it. This photograph had never been published in the media before it appeared in the book. In that sense it was a scoop, the commercial value of which was simply appropriated by the respondent.

The Kuta photograph

64    This photograph appears on the tenth page of the photographs published in the book. It was taken by Greg Martin who was Rosleigh Rose’s partner at that time and has since died. Upon Mr Martin’s death, Rosleigh Rose and Mr Martin’s three children became beneficiaries of his estate which included copyright owned by him in any photographs. Rosleigh Rose is therefore a 25% owner as a tenant in common of copyright in the Kuta photograph.

65    The photograph shows three people at a bar in Kuta called the Secret Garden. Rosleigh Rose is opposite David McHugh and Malcolm McCauley. Greg Martin’s chair beside her, and opposite them, is vacant.

66    According to the book, the Kuta photograph came to light when it was found by South Australian police on 24 November 2005, during a search of Malcolm McCauley’s premises as part of a drug investigation. Mr Duff said in his evidence that Mr McCauley provided him with a copy of the photograph in 2010. The book says, of the discovery by police:

…Amongst others was a picture of McCauley, McHugh and Ros happily gathered around a table, boozing inside their favourite Balinese bar, the Secret Garden.

67    The book suggests that an ongoing connection was maintained between Rosleigh Rose and David McHugh, who was found in a police search in 2009 to have been growing hydroponic marijuana. The book also recounts that Mr McHugh confessed to Mr Duff that he had been a long standing and regular supplier of marijuana to Mick Corby for resale. David McHugh was said to have supplied to Malcolm McCauley some of the marijuana sent to Mick Corby which was in Schapelle Corby’s possession when she was arrested in Indonesia.

68    The book goes into some detail about how the discovery of the Kuta photograph, and other photographs showing Rosleigh Rose and Schapelle Corby with David McHugh and Malcolm McCauley which were published with the book, was handled by Rosleigh Rose with innocent explanations as she dealt with the media in the context of impending appeals in relation to Schapelle Corby’s sentence. Inevitably, in the context set by the book, the Kuta photograph was a point of interest as it gave support to a suggestion of prior and ongoing association between David McHugh and Malcolm McCauley (who by then had each been convicted for drug dealing) and the Corby family.

69    Mr Duff’s affidavit evidence was that the Kuta photograph was given to him in July 2010 by Malcolm McCauley, who informed him that he could publish it if he wished without restriction. The statements attributed to Mr McCauley were not admitted into evidence as truth of the facts asserted in them.

70    Mr Duff’s affidavit evidence was also that he believed the photograph was owned by Mr McCauley and that he (Mr Duff) was free to use it, but that assertion cannot be reconciled with Mr Duff’s oral evidence and I do not accept it. It is impossible for copyright in the photograph to have been initially owned by Mr McCauley. It is evident from the fact that he did not take the photograph that Mr McCauley was not the author or the initial owner of copyright. Mr Duff accepted that in his oral evidence. There was no evidence of any other way in which Mr McCauley may have become the owner of copyright and no basis offered for any suggestion that he had.

71    In fact, Mr Duff’s belief, based on statements made publicly by Rosleigh Rose when the existence of the Kuta photograph became known, was that the photograph was taken by Mr Martin and copies were provided as a gift to Mr McHugh and Mr McCauley. Such a circumstance would be insufficient, without more, to invest either man with a licence overcoming or qualifying copyright in the photograph. Mr Duff, according to his oral evidence, understood that. Mr Duff did not say that he believed Mr McCauley was in a position to grant him a licence. Despite his belief that Mr Martin took the photograph, Mr Duff made no effort to ascertain or contact the copyright owner.

72    Initially, Rosleigh Rose gave evidence in an affidavit that Mr Martin gave Mr McCauley and Mr McHugh a copy of the Kuta photograph. In a second affidavit, she said that she herself gave a copy of the Kuta photograph to Mr McHugh but did not provide a copy of it to Mr McCauley. In her oral evidence, she was adamant that the first affidavit was incorrect.

73    Rosleigh Rose’s oral evidence was that she had only met David McHugh and Malcolm McCauley the day before the photograph was taken and that Mr McHugh had asked if he might have a photograph showing that he had met her (she being of interest as Schapelle Corby’s mother). She said that Greg Martin took the photograph with her camera for that purpose. Her evidence was that the photographs on that roll of film in the camera were developed the following day while she and Mr Martin waited and that two photographs were then given to Mr McHugh. She could not recall if they were two different photographs or two copies of the same photograph. She accepted they might have been two copies of the same photograph. She said they were not given directly to Mr McCauley but that one copy may have been passed to him by Mr McHugh. She said she would have had no problem with that happening. Ms Rose said that if Mr McCauley received a copy of the photograph it must have been from Mr McHugh and in circumstances where he, like Mr McHugh, received it as a memento only.

74    Whether Mr Martin or Rosleigh Rose gave the photographs to Mr McHugh, or even to Mr McCauley, does not in my view change the legal position. There was no evidence that any of the current owners of the copyright granted any permission to use the photograph. If Mr McCauley had a copy of the photograph for his personal use (which is the highest conclusion that the evidence will, in my view, support), that falls a long way short of a fact or circumstance which could support the proposition that the respondent obtained an effective licence to reproduce the Kuta photograph in the book when Mr McCauley supplied a copy to Mr Duff. In this case also, the preponderance of evidence is that neither Mr Duff nor the respondent had a licence to reproduce the photograph in the book, or otherwise.

Licence and sub-licence

75    Apart from the matters discussed above with respect to the individual photographs, there were further flaws in the respondent’s argument that it had the benefit of a licence to reproduce the photographs, at least until its licence was revoked.

76    At its highest for the respondent, making all necessary inferences in favour of the respondent: Mr Duff or Mr Holland was given permission (indirectly) to copy and reproduce the Santa photograph; Mr Esposito was given permission (indirectly) to copy and reproduce the Broadwater photograph; Mr Holland was given permission (indirectly) to copy and reproduce the airport photograph and the Polda photograph; and Mr Duff was given permission (indirectly) to copy and reproduce the Kuta photograph.

77    In the various claims about permission, there is no example of direct permission from a copyright owner. That is an initial problem for the respondent’s argument having regard to the operation of s 15 of the Copyright Act, which provides:

15    For the purposes of this Act, an act shall be deemed to have been done with the licence of the owner of a copyright if the doing of the act was authorized by a licence binding the owner of the copyright.

78    In order for the presumption to operate upon a sub-licence, there must be evidence of an initial, effective licence by the owner of copyright. The first point in the analysis, therefore, concerns the quality and legal effect of any permission or licence given initially by the copyright owner. There must be “an effective licence…found in a consent binding the copyright owner” (Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 per Gummow A-CJ at [10]). The evidence about those matters was uniform and unchallenged. No permission was given by the copyright owner to the persons who supplied Mr Esposito, Mr Holland and Mr Duff which would support any contention that the copyright owner was bound by a prior licence. The respondent’s argument therefore breaks down at the outset.

79    The next difficulty concerns the fact that Mr Esposito, Mr Holland and Mr Duff (in 2005) were all working for the Fairfax press. Each of the Santa photograph, the Broadwater photograph, the airport photograph and the Polda photograph were held in copy form in a Fairfax picture archive. That was the source from which Mr Duff obtained them, directly or indirectly. Any permission granted to Mr Esposito, Mr Holland or Mr Duff (in 2005) was really permission granted to Fairfax. Fairfax gave no permission to Mr Duff, or the respondent, to reproduce any of those four photographs. Mr Duff’s efforts as author of the book, and the respondent’s as publisher, were not efforts on behalf of Fairfax. In my view, there is no respectable argument available, whether based on particular facts or more generally, that any relevant licence existed at any time in connection with the book.

80    There is also a further, fatal reason why the respondent infringed copyright in each of the five photographs, which will emerge from Ms Kaiser’s evidence, which I discuss next.

Ms Kaiser's evidence

81    Evidence was given for the respondent by Ms Rebecca Kaiser, the Editorial Director of the respondent. She gave evidence that it is usually a requirement that authors of works published by the respondent obtain necessary copyright clearances. She suggested, initially, that the issue is addressed in “conversations” with the authors and that any assurance from an author that copyright clearance had been obtained would be accepted. Although Ms Kaiser accepted that the respondent was responsible for what appeared in a work published by it, she appeared to suggest in her oral evidence that the respondent was prepared to “take the risk that an author has obtained the necessary permission”. That seems to me, with respect, to be a surprising position for a publisher to take, but Ms Kaiser repeated it shortly thereafter. She was asked:

And what you’re telling his Honour this morning is that your employer - - -?---Mm.

- - - is willing to take the risk to rely on authors to ensure that it has complied with its

statutory obligations?---I guess that’s what I am saying, yes.

82    However, although Ms Kaiser seemed keen to emphasise that it was Mr Duff who had the task to gather photographs and get clearances she accepted, eventually, that she approved the final choice of photographs for publication.

83    Ms Kaiser accepted that from as early as 2010, none of the applicants would have co-operated in the publication of the book. However, although each of the photographs was obtained and supplied by Mr Duff without the co-operation of any of the applicants, and none of the five photographs was obtained by the respondent from a photograph library, she said:

I had no doubt that the photographs that we ended up using were clear because they came into the photo libraries.

84    I do not accept that statement. There was evidence that some of the other photographs published with the book were available from photograph libraries upon payment of a fee. A licence was obtained at the same time. That procedure was not available for any of the five photographs at issue in the present case. Later in her evidence, Ms Kaiser accepted that none of the photographs at issue in the proceedings was in fact available to the respondent for “download” from a photograph library, or for the payment of a fee to a photograph library. I am quite sure that Ms Kaiser understood perfectly well that the fact that some of those photographs might have been held by a photograph library as an archive record was an insufficient circumstance to meet the requirements of the Copyright Act. The method used by Mr Duff to obtain the photographs appears to have been informal and perhaps irregular.

85    Ms Kaiser accepted that whatever photographs had been given by any member of the Corby family to media organisations for some other purpose, photographs had never been given by any member of the family to the respondent to reproduce. She accepted that no member of the Corby family had granted permission to the respondent to reproduce the photographs. It is clear that the respondent had never sought any such permission. In my view the conclusion is inescapable that, whatever responsibility Ms Kaiser wished to assign to Mr Duff for obtaining clearances, she proceeded to publication of the book in the knowledge that no member of the Corby family had granted, or would grant, permission to the respondent to reproduce any of the photographs of which they might be the owner of copyright.

86    The respondent has detailed requirements governing its own conduct, and that of its authors, to ensure that proper permission is obtained from copyright owners and that copyright is not infringed. Those procedures and requirements were not followed in this case.

87    The respondent’s policy, for example, includes disclosure to a copyright owner of the sort of publication in which their work is to be reproduced and the context in which that is to happen. Ms Kaiser accepted that a copyright owner had a right to decline to have photographs reproduced in publications it did not approve of. She accepted, at least in principle, that it was necessary for informed consent to be obtained in order to get copyright clearance under the respondent’s policies.

88    Ms Kaiser was asked about a “style guide” which at one point was provided by the respondent to its authors. She said that the style guide is out-of-date and is not now provided to authors, although it has not been superseded. The style guide contains guidance about obtaining copyright clearance. Ms Kaiser was taken through the steps which the style guide indicates are necessary to obtain copyright clearance. The effect of Ms Kaiser’s evidence was, in my view, that the matters she was asked about remain current requirements. Consent must be obtained. It must be informed. It must be evidenced in writing.

89    In fact, it became apparent that none of the steps for obtaining an effective copyright clearance, which are regarded as necessary by the respondent itself, had been taken with respect to any of the five photographs. No attempt was made to satisfy any of the steps, either by Mr Duff or Ms Kaiser.

90    It is clear from Ms Kaiser’s evidence that she had no basis to believe that Mr Duff had taken any of the steps required by the respondent to obtain permission from a copyright owner in respect of any of the five photographs, and she had no basis to believe that permission from any relevant copyright owner had been obtained. Nor, so far as I can see, did she have any basis to think that there was a relevant licence permitting use of any of the photographs.

91    Insofar as Ms Kaiser gave evidence to the effect that she was satisfied at the time that copyright clearance had been obtained for reproduction of each for the four photographs, I regret to say that in my view that evidence was untrue.

Conclusions about infringement

92    In my view, the evidence in this case is stark. No effort was made by Mr Duff, or the respondent, to obtain the consent of the relevant owner of copyright to the reproduction in the book of any of the five photographs. I am compelled to the conclusion that a deliberate decision was made, and agreed upon, not to make any such effort.

93    At the same time, neither Mr Duff nor the respondent had any reasonable or responsible ground upon which to suppose, much less conclude, that they had the benefit of any licence from the owner of copyright to reproduce any of the photographs.

94    Mr Duff, at least, was reasonably candid with respect to some of the photographs that he knew he was infringing somebody’s copyright, even if he had not bothered to enquire whose. Ms Kaiser, I regret to say, was less candid.

95    Three of the photographs were obtained through Mr Holland, who apparently retrieved them informally from the Fairfax picture archive and provided them with a disclaimer; and one was retrieved (no doubt also informally) from the Fairfax picture archive by Mr Duff or Mr Esposito. That photograph (the Broadwater photograph) bore a copyright warning. None of those photographs was available to the respondent from the Fairfax picture archive on payment of a fee. No licence fee was paid to anybody. Mr Duff knew the position in that regard and so did Ms Kaiser. The fifth photograph was provided by Mr McCauley, who was clearly not the author.

96    Mr Duff made no enquiries about permission to reproduce the photographs from any relevant person. He did not attempt even to identify the person from whom permission would be needed. As responsibility for publishing lay with Ms Kaiser, and as she relied only on discussion with Mr Duff, I am satisfied Ms Kaiser knew the true position also. In my view, Ms Kaiser decided to reproduce the photographs despite the lack of any copyright clearance and despite the lack of any attempt to obtain it.

97    The conclusions I have thus far stated apply to any reproduction of the photographs since the book was published in November 2011. On those findings, the respondent has, since November 2011, infringed the applicants’ copyright. The defence mounted was weak to say the least. However, the position became even more graphic as a result of Ms Kaiser’s oral evidence.

98    The respondent disclosed to the applicants, for the purpose of the proceedings, that 44,006 copies of the book had been sold up to 27 March 2013. During Ms Kaiser’s evidence it was revealed that there was not a single initial print run. There had been a number of print runs, apparently as demand required more stock. The last print run was “about six weeks” before Ms Kaiser gave her evidence – i.e. roughly at the end of February or the beginning of March this year.

99    Until the evidence closed, as well as claiming that it had a licence to reproduce the photographs, the respondent relied upon a defence of “innocent infringement” based on s 115(3) of the Copyright Act.

100    In Milwell Pty Ltd v Olympic Amusements Pty Ltd (1999) 85 FCR 436 (“Milwell”), the Full Court said (at [52]):

52    To obtain the protection of s 115(3) a defendant must establish (i) an active subjective lack of awareness that the act constituting the infringement was an infringement of the copyright, and (ii) that, objectively considered, he or she had no reasonable grounds for suspecting that the act constituted an infringement.

101    On the facts as they were known to Mr Duff and the respondent there was, in my view, no respectable ground upon which such a defence could be based. The defence is not available simply because a defendant does not know who is the owner of copyright (see Milwell at [57]–[59]). During closing submissions for the applicants the defence based on s 115(3) of the Copyright Act was withdrawn. No reason was given but, apart from anything else, Ms Kaiser’s evidence about the recent printing rendered it untenable. It was impossible to claim the benefit of s 115(3) once the present litigation had been commenced (see Krueger Transport Equipment Pty Ltd v Glen Cameron Storage and Distribution Pty Ltd (No 2) (2008) 79 IPR 81 at [17]).

102    The recent printing also had a further impact on the sustainability of the respondent’s position, apart from the operation of s 115(3). The respondent, as I indicated earlier, argued that the applicants should have been taken to have granted a licence for use of the photograph(s) whose copyright each of them owned. However, the respondent conceded that if such a licence existed it was revocable at the election of the owner of copyright.

103    On 21 September 2012, solicitors for the applicants wrote to the respondents protesting reproduction of each of the five photographs in the book. If, at the time of first printing, there were licences of the kind for which the respondent contended, they did not survive receipt of this letter. That did not deter the respondent from the further printing about six weeks before the trial commenced, months after 21 September 2012 and months after the proceedings themselves had been commenced.

104    Counsel for the respondents had no answer to this difficulty, which emerged from the evidence given by the respondent’s own witness and which is destructive of the remaining defence. The circumstances are sufficient to make good the allegations of infringement of copyright, and render any defence based on a notion of licence ineffective and futile. Those facts were always known to the respondent, even if not to the applicants. I see nothing to the credit of the respondent in the circumstances I have mentioned.

105    I am satisfied that there was no licence from the owner of the copyright in any of the five photographs permitting their reproduction in the book, and that the applicants have discharged their onus in relation to that question. I am satisfied that the respondent infringed the copyright of the first applicant in the Polda photograph, the copyright of the second applicant in the Broadwater photograph, the copyright of the third applicant in the Santa photograph and in the airport photograph, and the copyright in the Kuta photograph in which the third applicant has a 25% interest as a tenant in common. Declarations to that effect should be granted.

106    I will also grant injunctions prohibiting any further reproduction by the respondent of any of those photographs in conjunction with the book Sins of the Father. I will order the destruction of any copies of the book in the possession of the respondent.

107    The applicants have elected to claim damages rather than take an amount of profits. Some attempt must therefore be made to assess compensatory damages under s 115(2) of the Copyright Act. The applicants have also asked for additional damages under s 115(4) of the Copyright Act.

108    For my present purposes, the relevant principles which guide the way damages should be assessed for infringement of copyright under both s 115(2) and s 115(4) are conveniently summarised in the judgment of Black CJ and Jacobson J in Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (2007) 157 FCR 564 (see also Sullivan v FNH Investments Pty Ltd t/as Palm Bay Hideaway (2003) 57 IPR 63 per Jacobson J at [85]–[102] – appeal dismissed in FNH Investments Pty Ltd v Sullivan [2003] FCAFC 246).

Compensatory damages under s 115(2) of the Copyright Act

109    The matters to be taken into account in assessing compensatory damages in the present case in my view involve the following ones. On the evidence, none of the present applicants would have given permission to reproduce any photograph in which they owned copyright. I do not think, therefore, that I should assess compensation based on an assumption that the copyright owner might have accepted a licence fee. It would not be appropriate to attempt to assess what might have been a “reasonable” licence fee in those circumstances. However, I must also take into account that the respondent has removed any opportunity for negotiation by disregarding the rights of the applicants and unilaterally appropriating their property. It cannot expect to do so without paying something as a result. On the other hand, I cannot ask myself what amount of money might have been sufficient, ultimately, to overcome the applicants’ resistance because, obviously enough, the respondent may have lost interest well short of such an amount.

110    The parties seemed agreed that a “licence fee” approach was inappropriate in the present case. They also seemed agreed that damages were “at large”. Although it would be open to fix nominal damages if it was impossible to arrive at any respectable assessment of damages, the assessments which follow seem to me to be sufficiently realistic, having regard to the nature of each photograph, and its utility for the book.

111    The Santa photograph was apparently freely provided by Mick Corby (even if he had no authority to do so) and appeared without complaint in connection with an article written by Mr Duff at about that time. It is a private photograph of historical interest only. It does not make more than a minor contribution to any of the central themes of the book. Nevertheless, the respondent had no right to use or exploit it and should not have done so. The fact that it was chosen to accompany the book is a tangible indication that it had a real commercial value in that context. I assess damages by way of compensation at $500.

112    The airport photograph has been widely used in the media, generally with the express consent of the Corby family and the copyright owner. That does not excuse its unpermitted use in the book. Its reproduction in the book is matched by direct references to it in the text which serve to set the scene for a discussion in the book about Schapelle Corby’s behaviour on the aeroplane and on arrival in Indonesia. I do not regard its reproduction in the book as trivial or unimportant. I assess damages by way of compensation at $1,000.

113    The Polda photograph has not been previously published, although a copy seems to have been provided by Ms Richards to Mr Holland, no doubt in good faith, in about 2005. It was, on the evidence, intended to be shared with family and friends. Its publication in the book is of more significance commercially in my view than the Santa photograph and the airport photograph, and the invasion of copyright entitlements and private interest is also greater. I assess damages by way of compensation at $2,000.

114    The Kuta photograph would be an unmemorable photograph in its own right but, in the context set by the book, it illustrates important connections between David McHugh, Malcolm McCauley and the Corby family, which the book explores in detail. In that context, its commercial significance for the publication is in my view greater again than other photographs. I would have assessed damages overall at $3,000. Damages for compensation for infringement of the interest of the third applicant I assess, therefore, at $750.

115    The Broadwater photograph would have less significance had it not appeared on the back cover, accompanied by the text which there appears. It seems to be the last photograph of Schapelle Corby with her father before her arrest. Focus on that relationship is one of the central themes of the book as the text on the back cover illustrates. Had it not been for the prominence given to this photograph on the back cover of the book I would have assessed compensatory damages at $1,000. However, in view of the prominence chosen for it, in my view the commercial value of the publication of this whimsical photograph, with its accompanying text, must be significantly higher. Taking into account its publication in both places in the book I assess damages by way of compensation at $5,000.

Additional damages under s 115(4) of the Copyright Act

116    Section 115(4) of the Copyright Act provides:

115    Actions for infringement

(4) Where, in an action under this section:

(a)    an infringement of copyright is established; and

(b)    the court is satisfied that it is proper to do so, having regard to:

(i)    the flagrancy of the infringement; and

(ia)    the need to deter similar infringements of copyright; and

(ib)    the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff's copyright; and

(ii)    whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form; and

iii)    any benefit shown to have accrued to the defendant by reason of the infringement; and

(iv)    all other relevant matters;

the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.

117    The matters referred to in s 115(4)(b)(i), (ia) and (ib) appear to me to be the matters which require attention in the circumstances of the present case.

118    I am satisfied that the respondent acted in flagrant disregard of the rights of the applicants as owners of copyright. To the extent that the respondent did so through Mr Duff, I am satisfied that Mr Duff had no foundation for any belief that he or the respondent had a right to reproduce any of the photographs, or that he actually held any such belief. To the extent that the respondent through Ms Kaiser made decisions to reproduce the photographs, I am satisfied that she also held no genuine belief that the respondent had permission to reproduce them. I infer that the respondent took a calculated risk. Indeed, although there is no evidence that this was its actual motivation, it may have occurred to the respondent that its position may have been worse had it sought any form of permission and been refused. Perhaps it also reasoned that any compensation ordered would be unlikely to extinguish the commercial benefits of reproduction of the photographs of its choice.

119    Whatever the specific path of the reasoning adopted, there is no legal merit in the course the respondent chose to adopt. Ms Kaiser declared in her evidence, “I respect copyright”, but it is clear that if the present case is an example, the declaration was a hollow one. The laws of copyright do not exist only to protect those of whom a publisher may approve. The authorities suggest that in a case of flagrant infringement a court should mark its disapproval of the conduct.

120    In the present case, I do not regard as relevant to the assessment of additional damages any criticism of the Corby family, its individual members and its associates (actual or presumed) which is to be found in the book. Those damages will not be fixed to address any perceived insult to the Corby family or any of its members but will be fixed having regard to the seriousness, amongst other things, of the studied disregard of the regime of copyright protection established by the Copyright Act. In my view, the present case suggests a need to deter the respondent and others from conduct of a similar kind.

121    In my view, on the facts as known to it, the respondent had no serious grounds for defending its conduct. Notions of putting an applicant to proof cannot shield an obdurate corporate respondent from a failure to take reasonable responsibility for its conduct.

122    If anything, the infringements of copyright which occurred this year were even more flagrant. They can only be explained as a conscious, calculated business decision despite the operation of the Copyright Act and regardless of the respondent’s obligations to respect the law. No doubt, from a business point of view, ordering the latest print run despite the fact that no possibility of maintaining any pretence at a defence remained open, may have passed some cost/benefit analysis or some risk assessment but I feel no alternative but to make clear for that reason also, through the award of additional damages, that the conduct was unacceptable.

123    I fix a total sum for additional damages of $45,000.

INFRINGEMENT OF MORAL RIGHTS

124    The applicants also sought remedies under Part IX of the Copyright Act, which deals with moral rights. Such rights are additional to other rights (s 192(1) of the Copyright Act). Where an author dies, moral rights (so far as here relevant) may only be exercised by a legal personal representative and are not transmissible by will (s 195AN(3) of the Copyright Act). The third applicant, therefore, has no enforceable moral right in the Kuta photograph.

125    One moral right (the only one relevant here) is a right of attribution of authorship. Section 193 of the Copyright Act provides:

193    Author’s right of attribution of authorship

(1)    The author of a work has a right of attribution of authorship in respect of the work.

(2)    The author's right is the right to be identified in accordance with this Division as the author of the work if any of the acts (the attributable acts) mentioned in section 194 are done in respect of the work.

126    Reproduction of a photograph in a material form is a relevant attributable act (s 194 of the Copyright Act). None of the photographs carry attribution of authorship, although in the text of the book Rosleigh Rose is identified as the author of the airport photograph. Section 195AO of the Copyright Act provides:

195AO    Infringement of right of attribution of authorship

Subject to this Subdivision, a person infringes an author's right of attribution of authorship in respect of a work if the person does, or authorises the doing of, an attributable act in respect of the work without the identification of the author in accordance with Division 2 as the author of the work.

127    However, s 195AR(1) and (2) provide:

195AR     No infringement of right of attribution of authorship if it was reasonable not to identify the author

(1) A person who does, or authorises the doing of, an attributable act in respect of a work does not, because the author of the work is not identified, infringe the author's right of attribution of authorship in respect of the work if the person establishes that it was reasonable in all the circumstances not to identify the author.

(2) The matters to be taken into account in determining for the purposes of subsection (1) whether it was reasonable in particular circumstances not to identify the author of a literary, dramatic, musical or artistic work include the following:

(a)    the nature of the work;

(b)    the purpose for which the work is used;

(c)    the manner in which the work is used;

(d)    the context in which the work is used;

(e)    any practice, in the industry in which the work is used, that is relevant to the work or the use of the work;

(f)    any practice contained in a voluntary code of practice, in the industry in which the work is used, that is relevant to the work or the use of the work;

(g)    any difficulty or expense that would have been incurred as a result of identifying the author;

(h)    whether the work was made:

(i)     in the course of the author's employment; or

(ii)    under a contract for the performance by the author of services for another person;

(iii)    if the work has 2 or more authors – their views about the failure to identify them.

128    The respondent argued that it was reasonable not to attribute authorship of any of the photographs because there is an industry practice that authorship of photographs is not always attributed. Ms Kaiser gave some evidence to that effect and there were some examples provided of books about Schapelle Corby in which authorship of photographs of the Corby family was not attributed. The respondent did not argue that it was sufficient to identify Rosleigh Rose as the author of the airport photograph in the text of the book; and that identification does not appear to me to satisfy the requirements of ss 195AA and 195AB of the Copyright Act, which require that identification to be clear and reasonably prominent.

129    I am prepared to accept that attribution of photographs (particularly photographs from private collections) is not always done. So much is accommodated by the matters referred to in s 195AR(2) itself, such as the difficulty of identifying an author. However, there is no evidence in the present case that lack of attribution was due to the observance by the respondent of any industry practice. Some photographs in the book were attributed. No attempt was made to establish that the photographs for which no attribution was made were so treated pursuant to some industry practice, or because it was too difficult to find the author or for any other particular reason contemplated by s 195AR.

130    In the present case, no effort was made by Mr Duff or the respondent to identify any author whose identity was unknown, although Mr Duff clearly knew that Rosleigh Rose was the author of the airport photograph. I conclude that the respondent, and Mr Duff, chose not to make any enquiries. I am not satisfied it would have been difficult or expensive to do so. I am not satisfied the respondent was following any particular industry practice. I conclude that it followed its own desires and that its conduct infringed the moral right of attribution of the first applicant in the Polda photograph, the second respondent in the Broadwater photograph and the third applicant in the Santa photograph and the airport photograph.

131    Remedies for infringement of moral rights are available under s 195AZA of the Copyright Act which provides (relevantly):

195AZA     Remedies for infringements of author’s moral rights

(1)     Subject to section 203, the relief that a court may grant in an action for an infringement of any of an author's moral rights in respect of a work includes any one or more of the following:

(a)    an injunction (subject to any terms that the court thinks fit);

(b)    damages for loss resulting from the infringement;

(c)    a declaration that a moral right of the author has been infringed;

(d)    an order that the defendant make a public apology for the infringement;

(e)    an order that any false attribution of authorship, or derogatory treatment, of the work be removed or reversed.

(2)    In exercising its discretion as to the appropriate relief to be granted, the court may take into account any of the following:

(a)    whether the defendant was aware, or ought reasonably to have been aware, of the author's moral rights;

(b)    the effect on the author's honour or reputation resulting from any damage to the work;

(c)    the number, and categories, of people who have seen or heard the work;

(d)    anything done by the defendant to mitigate the effects of the infringement;

(e)    if the moral right that was infringed was a right of attribution of authorship – any cost or difficulty that would have been associated with identifying the author;

(f)    any cost or difficulty in removing or reversing any false attribution of authorship, or derogatory treatment, of the work.

(Section 203 has no application in this case.)

132    The applicants have sought relief under s 195AZA(1)(b), (c) and (d). However, s 195AZGG(3) provides:

195AZGG     Saving of other rights and remedies

…

(3)    Any damages recovered in proceedings brought otherwise than under this Part are to be taken into account in proceedings brought under this Part and arising out of the same event or transaction.

133    As a result any damages awarded for infringement of copyright must be taken into account in assessing damages for moral infringement.

134    I am not satisfied that any of the applicants in fact suffered a loss resulting from lack of attribution, whether loss includes commercial loss or injury to feelings. There is no reason to conclude that any of the applicants would have wished their name to be published in connection with a photograph of which they were the author, thereby suggesting they were in some fashion or other implicated in, or receiving credit for, reproduction of the photograph in connection with the book.

135    It is not necessary for me to consider, either, whether aggravated damages might be available under s 195AZA(1)(b) in addition to compensatory damages under that provision. There is no basis to conclude that any conduct of the respondent has caused loss, hurt, embarrassment or damage to the reputation of any of the applicants as artists or as authors of any photograph. That status has no relevance for the complaint which the applicants have made which is that their distress and sense of outrage arises as family members, not as authors of photographs having a moral right of attribution with respect to those photographs.

136    I am prepared to make a declaration that the moral rights of attribution of each of the applicants has been infringed in the present case, even though the infringement seems to me to be more a question of form than substance. That is because, in my view, the respondent is not entitled to the benefit of any discretion to withhold such relief, having regard to its demonstrated preparedness to disregard the provisions of the Copyright Act.

137    However, I see no utility in ordering an apology with respect to a failure to make an attribution of authorship to which, in each case, the applicants would have been indifferent or would have found distasteful.

COSTS

138    The applicant has sought an opportunity to be heard separately on costs. Costs will be reserved.

Associate:

Dated:    24 April 2013