There have already been a few articles about the Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited case.

The first thing to note is that the decision is just on a preliminary question. This is a procedural device used where it is likely to help save the court’s (and parties’) time and resources. In this case, the issue is just: for the purposes of this suit, does the applicant actually own the copyright it is seeking to enforce. If not, obviously, it would be possible to dismiss the case straight away, saving the expense of a trial. In this case, the preliminary question is simply a determination of a basic fact.

The legal setting was relatively straightforward: the key issue involved events in 1934, when the Copyright Act 1912 (Cth) was in force. Marion Sinclair wrote the song (or, more accurately, the round) “Kookaburra Sits in the Old Gum Tree” in about 1934. (She died in 1988, which means the song comes out of copyright on 31 December 2038 — ie 104 years of copyright protection.)

In 1934, Sinclair entered the song in a Girl Guides competition. The conditions of entry stated: “All matter entered to become the property of the Guide Association.” The contemporaneous letters and documentation do not unambiguously relate what happened to Sinclair’s copyright: however a letter of 2 October 1934 from the Girl Guides to Sinclair thanks her “for the gift of your three Rounds to the Association”.

Later correspondence (in the 1950s) took the complexion of requests for licences, although apparently in the form of payments from third parties to the Girl Guides of America, whom they seem to have thought were the owners of copyright. At the same time, a representative of the Girl Guides of America corresponded with Sinclair in terms that suggested that the US organisation assumed that she owned the copyright.

The judge then referred to “a large number of other items of correspondence evidencing the grant of permission by Ms Sinclair to the printing and publication of “Kookaburra” ” (at [66]).

In 1975, Sinclair assigned APRA performing rights in her works, apparently in response to a letter from the ABC stating that “Kookaburra” was being performed without a licence. It is not said whether any special mention of “Kookaburra” was made in the assignment.

In 1983, Sinclair dealt with requests regarding “Kookaburra” in a manner that asserted she owned the copyright in it.

However, the judge also noted at [76]-[77]:

76. During 1984, Ms Sinclair wrote and published her autobiography. The autobiography contains a statement which might, on one view, be thought to indicate that Ms Sinclair acknowledged that the copyright in “Kookaburra” vested in the Victorian Girl Guides.

77. The statement was that the winning entry in the competition conducted by the Victorian Girl Guides “would be sold to help the fund”.

In a clear and careful judgment, Justice Jacobsen decided that Sinclair had not assigned the copyright to the Girl Guides. Jacobsen J drew attention to the state of the evidence at [109]: “there is a dearth of evidence about the circumstances in which Ms Sinclair entered “Kookaburra” in the competition.” The sparseness of the evidence meant that competing inferences could be drawn, and in order to decide the case the trial judge was forced to descend into speculation as to what Sinclair might have done or not done in 1934 when entering the competition. He dealt carefully and persuasively with each of the items of evidence, and in the end was not satisfied that EMI could establish an assignment had been made.

Of note, while Jacobsen J quite properly did not rely upon the later statements of third parties as decisive of the issue, he curiously also dismissed the statements in Sinclair’s autobiography as being “no more than personal reminiscences made by her 50 years after the date of the competition” (at [150]). One would have thought that they were powerful evidence of what actually occurred to the extent they contained admissions against her interest. The fact that she might have mis-remembered whether the competition was open to outsiders, or Girl Guides only, surely would not affect her recollection of having assigned away copyright to a song that — later — became iconic.

The only potential criticism of the decision is that there is no clear discussion of the question of onus of proof. In cases where the facts are sketchy and sparse, the onus of proof is likely to be decisive. The case seems to have been approached on the footing that EMI — the respondent in the action — had to prove that Sinclair did transfer the copyright to the Girl Guides, in which case the applicant suing it would have no title to sue.

But surely the applicant should have to prove on the balance of probabilities that it owns the copyright. Often this is simply admitted by the respondent. But where it is not, and particularly where there is a real possibility that there is a blot on the title — in this case, an assignment — raised on the evidence, why does an applicant not have to prove that the assignment did not occur? In such a case, the uncertainty would tend against the applicant.

The case highlights some of the practical problems of very long term copyrights. The key events in dispute took place only 75 years ago, but already there were no living witnesses, and the documentary evidence is fragmentary. What will happen in other similar cases, or ones that occur say 100 years after a work is created? Where an author does not leave a clear or unambiguous trail of evidence, should it be their assigns or later potential users (or infringers) of the work who suffer?

The other notable point, of course, is that this case has no effect on the actual infringement proceedings, save that it allows them to go forward. It really does seem quite remarkable that — assuming the Men at Work song does reproduce the melody of “Kookaburra” — it took 27 years for anyone to notice. The Men at Work song was composed and published in Australia in 1981 (when, of course, Sinclair was still alive). It is a matter of public notice that the song was immensely successful all over the world. That was 3 years before Sinclair’s autobiography and 6 years before she made the assignment of copyright to the State Library upon which the applicant’s title to sue was said to be founded. The action was only instituted in 2008.