The Doctrine of Innocent Infringer

In our article titled Copyright Infringing Drawings & Plans, we discussed situations where there is an implied licence to use architectural drawings and plans. In this article, we examine the doctrine of innocent infringer.

In the case of Tamawood Limited v Habitare Developments Pty Ltd (7 May 2013), Tamawood Ltd (“Tamawood”) sought relief against a developer, Habitare Developments Pty Ltd (“Habitare”) for allegedly infringing its copyright in its architectural drawings and plans (the “Plans”). Tamawood also sought relief against a builder, Bloomer Constructions (Qld) Pty Ltd (“Bloomer”) and an architectural firm, Mondo Architects Pty Ltd (“Mondo”) for allegedly using the Plans which were made available on Tamawood’s website. Whilst it was agreed that Tamawood prepared the Plans at no cost, Tamawood argued that it had done so on the basis that it would construct the houses once the Development Approval had been obtained. However, Tamawood was not retained to construct the homes, Habitare was.

Upon engagement by the homeowner, Habitare hired Mondo to review the Plans and effect unsubstantial changes to the Plans prior to construction. Once Mondo had prepared a derivative of the Plans, Habitare then engaged Bloomer to build the homes using a derivative of the Plans.

It was held by the Court that there was no licence for Habitare to use the Plans and furthermore, by Mondo creating a derivative of the Plans, it too had infringed Tamawood’s copyright in the Plans.

With respect to Bloomer, Bloomer claimed it did not have any knowledge of the Plans and was not aware that Mondo had created a derivative of the Plans. Accordingly, Bloomer pleaded the defence of innocent infringement pursuant to s115 (3) of the Copyright Act 1968. The defence of innocent infringer provides relief in the form of an account of profits only, with no damages for copyright infringement to follow. Bloomer succeeded in its defence.

Tips

• If you are going to market and advertise your plans, make sure you:
• clearly mark your plans with a ©;
• place your name on the plans; and
• state there is no implied or written licence to use your plans unless otherwise agreed in writing.
• If you have been given plans for construction, make sure you are notified where the plans have originated. When in doubt, have your client sign an indemnity agreement warrantying they have the right to use the plans and will indemnify you of all losses and damages in the event they do not.
• Do your own due diligence if something looks suspicious about the plans because you could be called to Court if your client’s warranty is found to be false.

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This article is not legal advice and should not be relied upon as legal advice. All articles found on this website are intended to provide informative information, nevertheless, in many instances legislation and case law has been simplified and/or paraphrased. If you would like personal legal advice based on your current circumstances, you should contact MurdockCheng Legal Practice for a free consultation.