- James Hardingham was a photographer and the director of Real Estate Marketing Australia Pty Ltd (REMA).
- Hardingham and REMA supplied works produced by Mr Hardingham to real estate agencies for use in the marketing of properties for sale or lease by way of an informal verbal contract.
- There was no written agreement between Hardingham and REMA or its agencies.
- One of the uses of Hardingham’s works by REMA’s agencies was to upload them to the platform operated by Realestate.com.au (REA). Realestate.com.au is a well-known website which provides information on the property and rental market.
- REA would then provide the works to RP Data Limited (RP Data).
- RP Data operated a website and provided a subscription service for agencies where the works remained after the sale or lease of the property. This information would form part of the historical information about completed transactions.
- Hardingham and REMA brought proceedings in the Federal Court of Australia alleging copyright infringement pursuant to section 36 of the Copyright Act 1968 (Cth).
- At trial, the Court found that there was an implied term that the various agencies could sub-licence Hardingham’s works to REA on the usual terms and conditions, which included RP Data. In the Full Court, a majority held that there was no implied term and that “actual knowledge” of the term’s scope was needed.
- Did the contract between REMA and the agencies contain an implied term which authorised those agencies to agree to REA’s terms and conditions?
- If there was a licence, was it limited up to the completion of the sale/lease of the property?
- The High Court upheld the appeal, holding that there was nothing in the dealings between Hardingham & REMA and the agencies which would lead a reasonable person to understand that there was a licence which was limited to only until the sale/lease of the property.
- The High Court reiterated the principles behind implied terms:
- The intention of the parties is determined objectively;
- The term must be reasonable and equitable, capable of clear expression, non-contradictory, give business efficacy and “goes without saying” (BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266);
- The Court considers the full range of circumstances which existed at the time of the contract.
“The silence of Mr Hardingham and REMA when they well knew what REA
and RP Data did with the images, and for how long they continued to use them, is
consistent with an acceptance of what was necessary to achieve the intended
marketing. Both Mr Hardingham and REMA and the agencies appreciated that it
could only be achieved if the agencies submitted to REA’s terms to upload the
images to its platform. The agencies were no doubt led to believe by the conduct
of Mr Hardingham and REMA that they knew and accepted that as a commercial
reality. In these circumstances it is not possible to conclude that it was intended that the agencies could only license REA on the basis of the limitation contended for.”
(Kiefel CJ & Gaegler J at page 8, paragraph )
“Put in simpler terms, the intention of H/REMA and each agency,
objectively ascertained, about the scope of the licence and the ability to grant a
sub-licence is to be identified from what was said and not said, from what was
done, and from what they reasonably knew or ought reasonably to have known.”
(Gordon J at page 15, paragraph )
The full text is available here: https://eresources.hcourt.gov.au/showCase/2022/HCA/39
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