58 CLR 479

(Judgment by: DIXON J)


High Court of Australia

Judges: Latham CJ
Rich J

Dixon J
Evatt J
McTiernan J

Subject References:
Intellectual property
Collated information
Notice on racecourse
Broadcast of races from adjoining land
Unnatural use of land
Proprietary right in spectacle

Hearing date:
Judgment date: 26 August 1937


Judgment by:

The foundation of the plaintiff company's case is no doubt the fact that persons who otherwise would attend race meetings stay away because they listen to the broadcast made by the defendant Angles from the tower overlooking the course. Beginning with the damage thus suffered and with the repetition that may be expected, the plaintiff company says that, unless a jurisdiction for causing it exists, the defendants or some of them must be liable, inasmuch as it is their unauthorized acts that inflict the loss. It is said that to look for a definite category or form of action into which to fit the plaintiff's complaint is to reverse the proper order of thought in the present stage of the law's development. In such a case it is for the defendants to point to the ground upon which the law allows them so to interfere with the normal course of the plaintiff's business as to cause damage.

There is, in my opinion, little to be gained by inquiring whether in English law the foundation of a delictual liability is unjustifiable damage or breach of specific duty. The law of tort has fallen into great confusion, but, in the main, what acts and omissions result in responsibility and what do not are matters defined by long-established rules of law from which judges ought not wittingly to depart and no light is shed upon a given case by large generalizations about them. We know that, if upon such facts as the present the plaintiff could recover at common law, his cause of action must have its source in an action upon the case and that in such an action, speaking generally, damage was the gist of the action. There is, perhaps, nothing wrong either historically or analytically in regarding an action for damage suffered by words, by deceit or by negligence as founded upon the damage and treating the unjustifiable conduct of the defendant who caused it as matter of inducement. But, whether his conduct be so described or be called more simply a wrongful act or omission, it remains true that it must answer a known description, or, in other words, respond to the tests or criteria laid down by established principle.

The plaintiff's counsel relied in the first instance upon an action on the case in the nature of nuisance. The premises of the plaintiff are occupied by it for the purpose of a racecourse. They have the natural advantage of not being overlooked by any surrounding heights or raised ground. They have been furnished with all the equipment of a racecourse and so enclosed as to prevent any unauthorized ingress or, unless by some such exceptional devices as the defendants have adopted, any unauthorized view of the spectacle. The plaintiff can thus exclude the public who do not pay and can exclude them not only from presence at, but also from knowledge of, the proceedings upon the course. It is upon the ability to do this that the profitable character of the enterprise ultimately depends. The position of and the improvements to the land thus fit it for a racecourse and give its occupation a particular value. The defendants then proceed by an unusual use of their premises to deprive the plaintiff's land of this value, to strip it of its exclusiveness. By the tower placed where the race will be fully visible and equipped with microphone and line, they enable Angles to see the spectacle and convey its substance by broadcast. The effect is, the plaintiff says just as if they supplied the plaintiff's customers with elevated vantage points round the course from which they could witness all that otherwise would attract them and induce them to pay the price of admission to the course. The feature in which the plaintiff finds the wrong of nuisance is the impairment or deprivation of the advantages possessed by the plaintiff's land as a racecourse by means of a non-natural and unusual use of the defendants' land.

this treatment of the case will not, I think, hold water. It may be conceded that interferences of a physical nature, as by fumes, smell and noise, are not the only means of committing a private nuisance. But the essence of the wrong is the detraction from the occupier's enjoyment of the natural rights belonging to, or in the case of easements, of the acquired rights annexed to, the occupation of land. The law fixes those rights. Diversion of custom from a business carried on upon the land may be brought about by noise, fumes, obstruction of the frontage or any other interference with the enjoyment of recognized rights arising from the occupation of property and, if so, it forms a legitimate head of damage recoverable for the wrong; but it is not the wrong itself. The existence or the use of a microphone upon neighbouring land is, of course, no nuisance. If one, who could not see the spectacle, took upon himself to broadcast a fictitious account of the races he might conceivably render himself liable in a form of action in which his falsehood played a part, but he would commit no nuisance. It is the obtaining a view of the premises which is the foundation of the allegation. But English law is, rightly or wrongly, clear that the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers or of other persons who enable themselves to overlook the premises. An occupier of land is at liberty to exclude his neighbour's view by any physical means he can adopt. But while it is no wrongful act on his part to block the prospect from adjacent land, it is no wrongful act on the part of any person on such land to avail himself of what prospect exists or can be obtained. Not only is it lawful on the part of those occupying premises in the vicinity to overlook the land from any natural vantage point, but artificial erections may be made which destroy the privacy existing under natural conditions. In Chandler v Thompson [F18] Le Blanc J. said that, although an action for opening a window to disturb the plaintiff's privacy was to be read of in the books, he had never known such an action maintained, and when he was in the common pleas he had heard it laid down by Eyre L.C.J. that such an action did not lie and that the only remedy was to build on the adjoining land opposite to the offensive window. After that date there is, I think, no trace in the authorities of any doctrine to the contrary. In Johnson v Wyatt [F19] Turner L.J. said: "That the windows of the house may be overlooked, and its comparative privacy destroyed, and its value thus diminished by the proposed erection...are matters with which, as I apprehend, we have nothing to do," that is, they afforded no ground for an injunction. In In re Penny and the South Eastern Railway Co [F20] the Court of Queen's Bench set aside an award of compensation to a landowner for injurious affection by the construction of a railway because in the compensation awarded there was included the depreciation of the land owing to its now being overlooked. Erle J. said: "The comfort and value of the property may have been diminished but no action would have lain for the injury before the statutory authority was conferred on the company". [F21] This principle formed one of the subsidiary reasons upon which the decision of the House of Lords was based in Tapling v Jones. [F22] Lord Chelmsford said:"the owner of a house has a right at all open as many windows in his own house as he pleases. By the exercise of the right he may materially interfere with the comfort and enjoyment of his neighbour; but of this species of injury the law takes no cognizance. It leaves everyone to his self-defence against an annoyance of this description; and the only remedy in the power of the adjoining owner is to build on his own ground, and so to shut out the offensive windows". [F23]

When this principle is applied to the plaintiff's case it means, I think, that the essential element upon which it depends is lacking. So far as freedom from view or inspection is a natural or acquired physical characteristic of the site, giving it value for the purpose of the business or pursuit which the plaintiff conducts, it is a characteristic which is not a legally protected interest. It is not a natural right for breach of which a legal remedy is given, either by an action in the nature of nuisance or otherwise. The fact is that the substance of the plaintiff's complaint goes to interference, not with its enjoyment of the land, but with the profitable conduct of its business. If English law had followed the course of development that has recently taken place in the United States, the "broadcasting rights" in respect of the races might have been protected as part of the quasi-property created by the enterprise, organization and labour of the plaintiff in establishing and equipping a racecourse and doing all that is necessary to conduct race meetings. But courts of equity have not in British jurisdictions thrown the protection of an injunction around all the intangible elements of value, that is, value in exchange, which may flow from the exercise by an individual of his powers or resources whether in the organization of a business or undertaking or the use of ingenuity, knowledge, skill or labour. This is sufficiently by the history of the law of copyright and by the fact that the exclusive right to invention, trade marks, designs, trade name are dealt with in English law as special heads of protected interests and not under a wide generalization.

In dissenting from a judgment of the Supreme Court of the United States by which the organized collection of news by a news service was held to give it in equity a quasi-property protected against appropriation by rival news agencies, Brandeis J. gave reasons which substantially represent the English view and he supported his opinion by a citation of much English authority (International News Service v Associated Press [F24] ). His judgment appears to me to contain an adequate answer both upon principle and authority to the suggestion that the defendants are misappropriating or abstracting something which the plaintiff has created and alone is entitled to turn to value. Briefly, the answer is that it is not because the individual has by his efforts put himself in a position to obtain value for what he can give that his right to give it becomes protected by law and so assumes the exclusiveness of property, but because the intangible or incorporeal right he claims falls within a recognized category to which legal or equitable protection attaches. Brandeis J. cites with approval Sports and General Press Agency Ltd v "Our Dogs" Publishing Co Ltd, [F25] a decision of Horridge J. (affirmed by the Court of Appeal, [F26] which he describes as follows:"The plaintiff, the assignee of the right to photograph the exhibits at a dog show, was refused an injunction against the defendant, who had also taken pictures of the show and was publishing them. The court said that, except in so far as the possession of the land occupied by the show enabled the proprietors to exclude people or permit them on condition that they agree not to take photographs (which condition was not imposed in that case), the proprietors had no exclusive right to photograph the show and could therefore grant no such right. And, it was further stated that, at any rate, no matter what conditions might be imposed upon those entering the grounds, if the defendant had been on top of a house or in some position where he could photograph the show without interfering with the physical property of the plaintiff, the plaintiff would have no right to stop him". [F27]

In my opinion, the right to exclude the defendants from broadcasting a description of the occurrences they can see upon the plaintiff's land is not given by law. It is not an interest falling within any category which is protected at law or in equity. I have had the advantage of reading the judgment of Rich J., but I am unable to regard the considerations which are there set out as justifying what I consider amounts not simply to a new application of settled principle but to the introduction into the law of new doctrine.

Apart from the matters with which I have dealt, the plaintiff claimed that the defendants or some of them had been guilty of infringement of copyright. Copyright in two forms of production was set up. One was the board affording information of the scratchings and places at the barrier. The other was the race book. It may at once be conceded that copyright subsisted in the latter. Perhaps from the facts a presumption arises that the plaintiff company is the owner of the copyright but, as corporations must enlist human agencies to compose literary, dramatic, musical and artistic works, it cannot found its title on authorship. No proof was offered that the author or authors was or were in the employment of the company under a contract of service and that the book was compiled or written in the course of such employment (See s. 5 (2) of the British Copyright Act 1911, scheduled to the Commonwealth Act of 1912). Perhaps these facts are to be presumed. But the reason for the absence of proof of ownership is that the book was not relied upon at the hearing of the suit in support of the claim for infringement of copyright. In my opinion, the plaintiff was right in not relying upon it. For to establish infringement it would be necessary to show that the broadcast included such a use of the contents of the book as to amount to a "performance" of a substantial part of the "work" which it constitutes. No doubt the defendant Angles made much use of the information contained in the race book to enable him to give an account of the proceedings upon the course. But it is not information that is protected in the case of literary works but the manner in which ideas and information are expressed or used. "Performance" is defined to mean any acoustic representation of a work and any visual representation of any dramatic work, including such a representation made by means of any mechanical instrument. I do not think that any "acoustic representation" of a substantial part of the race book was given through the microphone.

The board contained a list of positions at the barrier which was, in effect, repeated, but I should not have thought that, if the list was the subject of copyright, to repeat the order of positions actually assigned to the horses amounted to an infringement. I am, however, quite unable to suppose that, when the names of the starters, their positions, jockeys and so on are exhibited before a race, doing so amounts to publishing a literary work which becomes the subject of copyright. No doubt the expression "literary work" includes compilation. The definition section says so (s. 35 (1)). But some original result must be produced. This does not mean that new or inventive ideas must be contributed. The work need show no literary or other skill or judgment. But it must originate with the author and be more than a copy of other material. The material for the board consists in the actual allotment of places and other arrangements made by the plaintiff company's officers in respect of the horses. To fit in on the notice board the names and figures which will display this information for a short time does not appear to me to make an original literary work.

In my opinion the judgment of Nicholas J. is right and the appeal should be dismissed.

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