Australasian Performing Right Association Limited v Pashalidis [2000] FCA 1032

FEDERAL COURT OF AUSTRALIA

Australasian Performing Right Association Limited (ACN 000 016 099)

v Pashalidis [2000] FCA 1032

COPYRIGHT – public performance of musical, literary and dramatic works – playing of songs in fitness centres during fitness classes and on background radio system in public areas – compensatory damages – additional damages – flagrancy of infringement – benefit accruing to respondent by reason of infringement

Copyright Act 1968 (Cth) s 115(2) & (4)

Raben Footwear Pty Ltd v Polygram Records Inc (1997) 37 IPR 417 applied AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED (ACN 000 016 099) v STEPHEN PASHALIDIS T/AS BODYWORKS FITNESS CLUBS N 448 OF 1999 MOORE J 2 AUGUST 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 448 OF 1999

BETWEEN: AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED (ACN 000 016 099)

APPLICANT

AND: STEPHEN PASHALIDIS

T/AS BODYWORKS FITNESS CLUBS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 2 AUGUST 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The respondent pay the applicant the sum of $15,669.22. 2. The respondent pay the applicant's costs of the proceedings not otherwise the subject of an order for costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 448 OF 1999

BETWEEN: AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED (ACN 000 016 099)

APPLICANT

AND: STEPHEN PASHALIDIS

T/AS BODYWORKS FITNESS CLUBS

RESPONDENT

JUDGE: MOORE J

DATE: 2 AUGUST 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 These proceedings were commenced on 18 May 1999 by the Australasian Performing Right Association Limited ("the applicant") under ss 36 and 115 of the Copyright Act 1968 (Cth) ("the Copyright Act"). The applicant is, in plain terms, a collecting society which controls the rights of public performance, broadcasting and diffusion of musical (and associated literary and dramatic) works within Australia. The respondent is the registered proprietor of the business currently trading as "Bodyworks Fitness Clubs", which operates fitness centres in the Australian Capital Territory. He has taken no part in these proceedings. The applicant alleges that the respondent has infringed and continues to infringe the copyright in musical and literary works (namely songs and lyrics) of which the applicant is either the owner or the agent of the owner, by performing them or authorising their performance in his fitness centres. 2 On 14 September 1999, I made orders that the issues of liability and damages be determined separately. I then heard evidence and submissions from the applicant on liability and made orders restraining the respondent from performing in public, or authorising the performance in public of, certain musical and literary works (which are detailed later in these reasons). The proceedings have now reached a point where I am considering the issue of damages. It is desirable to set out in greater detail events leading to the commencement of these proceedings, and the course of these proceedings in the Court.