Realestate.com.au Pty Ltd v Hardingham, RP Data Pty Ltd v Hardingham  HCA 39
With digital marketing being the driving factor in property sales, it is crucial that real estate agents are aware of the legal developments in this area. This case was before the High Court of Australia last year and could be of great significance to your licensing arrangements.
The defendant, Mr Hardingham, is a professional photographer and sole director of Real Estate Marketing Australia Pty Ltd (“REMA”). REMA’s business is the supply of photographs taken and floor plans made of residential properties. The photographs and floor plans created by Mr Hardingham are then made available to real estate agencies in and editable digital format, for use in the marketing of those properties for sale or lease.
The commissioning agencies which received the photographs and floor plans then used the images in their marketing of properties. One such marketing step was posting the photos onto realestate.com.au (“REA”). These images were then provided by REA to RP Data Pty Limited, which provides a subscription-based service to real-estate agents.
The images provided by REMA to the agencies would appear on RP Data Professional within a few days of upload to REA and remain on REA’s platform and RP Data Professional after the property in the images has been sold or leased. The images remained on the website as part of the historical information about completed transactions and a pricing guide for future sales.
Subsequently, Mr Hardingham and Real Estate Marketing Australia brought court proceedings alleging that RP Data had infringed their copyright under section 36 of the Copyright Act 1968 (Cth). It was mutually understood that RP Data would infringe the copyright if it used the works without a licence referable to Mr Hardingham or REMA so the proceedings were focussed on the terms of the licence that was provided to the Real Estate Agencies by REMA. This licence gave the agencies the permission to sub-licence the use of works to REA. REMA contended that the licence was subject to a limitation that once the sale or lease of the property in the subject images was complete, the licence came to an end. A licence under these terms would not permit the agencies to accept the terms of the licence required by REA, as this licence included the ability to sub-licence to other persons such as RP Data.
The full High Court of Australia found that there was nothing in the dealings between Hardingham & REMA and the agencies which would lead a reasonable person to understand that there was a licence which was limited to only until the sale/lease of the property. As such, the High Court held that RP Data did not infringe copyright in the works. A reasonable person in the position of the parties would have known that one of the purposes of REMA providing the works to the agencies was so that the agencies could provide them to REA, and the same reasonable person would understand that the agencies had no real choice other than to accept a term requiring them to provide a licence to REA to use the works indefinitely and to provide them to RP Data.
This is a significant development to real estate agents utilising these programs and software as well as in licensing and copyright laws. It demonstrates once again that the ‘reasonable person’ test is a useful key to understanding licencing requirements and permissions. Certainly licencing in the digital era is becoming more complex however the High Court’s stripped back reasoning and utilization of the reasonable person test has provided some clarity, for now.
Real estate agents utilizing REA and RP Data respectively under the current licensing agreements appear to be permitted to do so without any risk of breaching the agreement. we are yet to see if home buyers and sellers have any complaints to make about the images remaining for ever with RP Data. Watch this image !