Avel Pty Ltd v Multicoin Amusements Pty Ltd [1990] HCA 58

High Court of Australia Mason C.J. Deane, Dawson, Gaudron and McHugh JJ. Avel Pty Ltd v Multicoin Amusements Pty Ltd [1990] HCA 58

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 20 Mason C.J., Deane and Gaudron JJ.

The detailed facts and the relevant provisions of the Copyright Act 1968 Cth ("the Act") and of the distribution agreement between Avel Pty. Ltd. ("the distributor") and Williams Electronics Games, Inc. ("Williams") are set out in the judgment of McHugh J. We shall avoid unnecessary repetition of them.

We agree with McHugh J.'s identification of the questions involved in the appeal. Those questions fall generally into three distinct groups. First, there are some questions concerning the construction and effect of the distribution agreement. Secondly, there are questions concerning the construction and effect of provisions of the Act. Thirdly, there are questions of admissibility of particular evidence and of the effect of the overall evidence in so far as entitlement to relief is concerned. On the first two groups of questions, which are interrelated and are best dealt with in logical order rather than as separate groups, we are in general agreement with the reasons of McHugh J. That being so, we can express the conclusions which we have reached in relation to those questions in summary form.

Those conclusions are:

(i) The preferable construction of the distribution agreement is to read the expression "the Games" as referring not to individual identified machines but to particular models or types of machine.

(ii) The provision of s. 29(1)(a) defining when a work "shall be deemed to have been published " (emphasis added) for the purposes of the Act does not operate as a definition of what is encompassed by the words "to publish" for the purposes of s. 31(1). The words "to publish" in s. 31(1) should be read as meaning to make public that which has not previously been made public in the copyright territory. We are, of course, conscious of the fact that there is an element of artificiality involved in a literalistic confinement of s. 29(1)(a) to defining when a work "has been published" (e.g. for the purposes of determining the subsistence of copyright: see s. 32) as distinct from what constitutes the act of publishing (e.g. for infringement purposes: see s. 31). That confinement of s. 29(1)(a) is, however, dictated by the content of other provisions of the Act (see, in particular, ss. 36, 37 and 38), by general concepts of copyright law and by considerations of policy (cf. Infabrics Ltd. v. Jaytex Ltd. [22] ; Lahore, Copyright Law, pp. 3563-3564; but note Ricketson, Law of Intellectual Property (1984), pp. 221-222).