A ‘calculated risk’ backfires

Leading Australian independent publisher Allen & Unwin ordered by the Federal Court to pay damages for flagrant copyright infringement to the Corby family and to destroy remaining copies of Sins of the Father.

Australia’s leading independent publisher Allen & Unwin has recently been ordered by the Federal Court in Corby v Allen & Unwin Pty Limited [2013] FCA 370 to pay damages of $54,250 for copyright infringement to members of the Corby family as a result of litigation over the unauthorised publication of five photographs in the top selling book, Sins of the Father.

The damages awarded include $45,000 representing additional damages due to the ‘flagrancy’ of the infringements. The Federal Court also ordered Allen & Unwin to destroy any copies of the book which remain in the publisher’s possession.

Allen & Unwin tried to argue that it had implied licences to reproduce the photographs and that it could rely on the defence of ‘innocent infringement’. However, no evidence could be provided by Allen & Unwin to demonstrate that it had permission to reproduce the photographs. The Court found that the senior journalist who wrote the book knew he was infringing copyright and that the publisher also knew the position. The publisher was taken to have deliberately decided to reproduce the photographs without having sought or obtained copyright clearance.

Interestingly, although orders were also made that Allen & Unwin had infringed the moral rights of the owners of the copyright in the photographs, no damages were awarded for moral rights breaches. As a result, this decision upholds the status quo that in Australia it is extremely rare for damages to be awarded for moral rights infringements.