University of Waikato v Benchmarking Services & Anor

McGrath, Glazebrook, Randerson JJ, Court of Appeal

CA 2160/03, 11 June 2004

This case was an appeal from the dismissal of an application for summary judgment in copyright infringement proceedings.  The appellant alleged that the respondent had infringed copyright in various works relating to the “New Zealand Business Benchmarking Survey” which the appellant had compiled and published annually for 18 years.  This survey involved collecting certain financial data from accounting firms relating to New Zealand businesses and compiling it to provide benchmark data for various industries. That benchmark data included various ratios, percentages and percentiles to enable companies to measure their financial performance against others in the industry. 

Although the appellant did not hold copyright in the raw data or commonplace features of its reports (for example, inclusion of income, gross profits, the calculation of operating profit), a number of unusual or unique features were held to be protected including various headings and their order, the selection and calculation of various ratios, the presentation and calculation of figures and percentages, and the overall format and presentation.  The Court found a “striking similarity” between three of the plaintiff’s works and the alleged copy including similarities in the headings and column titles.  The format was almost the same as the plaintiff’s which involved using percentage figures in certain places where dollar figures would usually be expected. 

Causal connection was established both on the facts and as an inescapable inference from the similarity of the publication.  The Court granted summary judgment and said:

“Care is necessary before taking the step of granting summary judgment in a case such as this.  But the present case is one of alleged infringement of copyright in literary works where it is simply a matter of comparing the form and content of the appellant’s report with the corresponding material in the respondent’s brochure and website.  The determination of the issue of infringement is a matter for the Court.  However, we are satisfied that no further evidence or discovery of documents would produce further material bearing on the issue of infringement.”