A Californian jury has recently ordered pop stars Pharrell Williams and Robin Thicke to pay nearly $US7.4 million to Marvin Gaye's children after ruling the pair had copied parts of Gaye's song 'Got to Give It Up' in writing the 2013 hit 'Blurred Lines'.

The case involved a large number of expert witnesses, large amounts of technical evidence and a great deal of comparisons between the two songs. The damages the jury awarded represented the highest amount ever awarded for a copyright infringement suit.

Besides the record amount of damages, this case highlights the differences between the US and Australian systems of civil litigation with respect to copyright infringement.

A few years ago a similar case came before the Australian courts involving two of Australia's most loved anthems. After a segment on the popular music quiz show Spicks and Specks, attention was drawn to the similarity of the old children song 'Kookaburra Sits in the Old Gum Tree' (Kookaburra) and Men at Work's hit'Down Under'. Following the airing of the show, Larrikin Music, as copyright holder, commenced legal action for copyright infringement.

The upshot of the Federal Court case, the appeal and the subsequent High Court refusal of an application for special leave to appeal, was the finding that 'Down Under' reproduced a substantial part of 'Kookaburra', and that EMI Songs Australia Pty Ltd, as Men at Work's publishing company, had misrepresented their entitlements to the royalty income from 'Down Under'. The Court held that Larrikin Music was entitled to 5% of the royalties generated from the song for a period of 6 years.

Now, compare this amount to the damages awarded in the 'Blurred Lines' case. For the damages award in the'Down Under' case to come close to equalling that in the 'Blurred Lines' case, the royalties generated from 'Down Under' would have needed to be in the region of $150 million over the six years, an amount unlikely to have been reached.

SO, WHY THE HUGE DIFFERENCE?

Part of the answer may lie in the fact that the 'Blurred Lines' allegations occurred shortly after the song's release and while the song still maintained pop appeal. Contrast this with the fact that the 'Down Under' allegations and court case occurred more than 25 years after the initial release of the song.

While this may go some way to answering the question, another potentially more decisive factor may be that US civil cases, such as the 'Blurred Lines' case, are decided by juries. This right in the US to a civil trial by jury stems from the Seventh Amendment which provides, "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

This system is in contrast to the one in Australia where civil cases are heard by a judge(s). On one view, the Australian system takes away the potential for a jury (comprised of lay people) to be persuaded by slick arguments or a motivation to 'punish' one of the parties in the case. As juries in the US are also given the power to decide the amount of damages, the influence of factors such as emotion has the ability to lead to extraordinary sums being awarded. Damages awards can also vary greatly as there is no requirement that a jury follow past cases.

Accordingly, the Australian system, through its use of a judge who is bound by past decisions, offers the litigants greater certainty and uniformity as far as damages awards for copyright infringement are concerned.

Under the Australian Copyright Act, copyright is infringed by an unauthorised dealing with a substantial part of a work. What is 'substantial' is a question of fact and degree that is determined by a court according to the circumstances of each case.