Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd: copyrights in building design

The Full Court of the Federal Court in Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC4 had to deal with the following issue: was copyright in a building design infringed?

To establish that there was an infringement, a copyright owner needs to establish that:

  1. The alleged copied work has a sufficient degree of objective similarity with the alleged copyright work; and
  2. The alleged copied work was created through a direct or indirect copying of the copyright work.

Importantly, that copying does not have to be intentional.

Ron Englehart Pty Ltd (“Ron Englehart”) alleged that:

  1. Enterprise Constructions (Aust) Pty Ltd (“Enterprise”) building design was substantially similar to Ron Englehart’s building design;
  2. Because of the similarity, the Court should infer that the director of Enterprise had a brochure that contained the Ron Englehart design and used it to instruct the architect as to what to draw; and
  3. The architect unintentionally copied Ron Englehart’s building design.

The Court accepted there were striking similarities between the copyright work and the alleged copied work, however, the Court held that Ron Englehart failed to establish that the similarities were as a result of copying.

The following are some of the key considerations the Court took into account in making that finding:

  1. There was no evidence that the director of Enterprise ever obtained the relevant brochure;
  2. The architect’s initial design was not similar to Ron Englehart’s design;
  3. While the architect’s design was later amended to become similar to Ron Englehart’s design, the Court accepted the architect’s evidence that he made the changes on his own initiative and without reference to Ron Englehart’s design; and
  4. All experts agree that Enterprise’s design could have been done without copying.

This case highlights that mere similarity is insufficient for a copyright owner to establish an infringement, even in the case of striking similarity. The copyright owner needs to also establish, through direct evidence, that the copyright design was copied.

This case also highlights that copyright subsists in building design.

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