Skip to content.

Home

Allens

Client Update: High Court upholds Ten's appeal on The Panel decision – 17 March 2004

In brief: The High Court has handed down its ruling on the extent of copyright protection in television broadcasts. Partner Jackie O'Brien, Senior Associate Miriam Stiel and Law Graduate Brendan Plant report.

The High Court1 has overturned the decision of the Full Federal Court2, which held that the owner of the copyright in a television broadcast had the exclusive right to reproduce any of the images and accompanying audio broadcast. 

On one hand, the High Court's decision will be welcomed by broadcasters, editors, producers and others within the television and movie industries because, by narrowing the scope of the broadcast right, the threshold for infringement seems to have been raised.

However, while the majority of the High Court found that television programs and individual advertisements both answer the description of a 'television broadcast' for the purpose of the Copyright Act, it left open the question of whether a particular segment of a program may also constitute 'a television broadcast'. It also gave no guidance on how a 'substantial part' of a television broadcast is to be determined for the purpose of infringement. 

Background

Channel Nine commenced copyright infringement proceedings in the Federal Court against Network Ten under the Copyright Act 1968 (Cth) (the Act) for broadcasting short excerpts of Channel Nine programs on its television show, The Panel. Network Ten defended the action on the basis that it had not re-broadcast a substantial part of Nine's broadcasts or, if it had, that its broadcast of the segments constituted 'fair dealing' under the Act.

Return to top

The trial judge

At first instance3, Justice Conti considered two main issues: first, the scope of the television broadcast copyright under the Act; and, second, the application of the fair dealing defence.

Justice Conti held that, in order to infringe television broadcast copyright, it was necessary to re-broadcast a 'substantial part' of that subject matter. In relation to television broadcasts, the subject matter was a program or, in certain cases, a segment of a program with a self-contained theme. His Honour treated television advertisements as discrete television broadcasts worthy of protection.

Justice Conti concluded that Network Ten had not infringed copyright in Channel Nine's programs because the excerpts taken were not substantial in terms of quality or quantity and were not taken for a commercial purpose. Although not strictly necessary given his findings on the scope of the copyright, Justice Conti proceeded to address the availability of fair dealing defences in these circumstances. His Honour considered that 11 out of the 20 broadcasts were fair dealings for the purpose of criticism and review or for the purpose of reporting news.

Return to top

The Full Federal Court

The Full Court of the Federal Court disagreed with Justice Conti's decision, finding unanimously that Network Ten had infringed the copyright Channel Nine held in its television broadcasts. The Full Court held that making videos of another channel's television footage and re-broadcasting any of the actual images and sounds of that broadcast is an infringement of copyright. The court also held that there was no requirement that the visual images must constitute a substantial part of the original broadcast.

In reaching this conclusion, the court drew a distinction between a cinematograph film and a television broadcast. The definition of cinematograph film in the Act is an 'aggregate of visual images... capable... of being shown as a moving picture'. In contrast, the Full Court considered a television broadcast to be a sequence of still images with accompanying sounds. Therefore, the Court held that copyright can subsist in each and every still image that is transmitted or capable of being observed as a separate image on a television screen.

Having found that Network Ten's actions had infringed Channel Nine's copyright, the Full Court went on to consider the fair dealing defences argued by Ten. Although the court agreed on the principles that emerged from authorities involving the application of the fair dealing defences4, the three Full Court judges (Justices Hely, Sundberg and Finkelstein) reached different conclusions as to whether or not the fair dealing defences were available to Ten in relation to some of the re-broadcast segments.

Network Ten appealed to the High Court, arguing that the Full Federal Court had misinterpreted the term 'a television broadcast' in the Act.

Return to top

High Court: majority decision

The High Court, by a three to two majority, overturned the Full Federal Court's decision. The High Court held that a single image appearing on a television screen with accompanying audio does not constitute a television broadcast. The majority found that, in this case, the 'television broadcasts' were the 20 separate Channel Nine programs from which the excerpts shown by Ten had been taken. The Court described these as broadcasts 'put out to the public, the object of the activity of broadcasting, as discrete periods of broadcasting identified and promoted by a title... which would attract the attention of the public'.

In coming to this conclusion, the majority criticised the Full Court's approach for giving an artificial meaning to the terms of the Act and for privileging the rights of television broadcasters over those of other copyright holders. The majority's interpretation of the Act drew on the historical and legislative context surrounding the first grant of broadcast copyright in both Australia and the United Kingdom and pointed to the use of the term 'program' in other legislation applicable to the broadcasting industry.

The High Court agreed with Justice Conti that television advertisements are discrete television broadcasts. However, the Court did not decide whether an individual segment within a television program qualifies as 'a television broadcast' in which copyright subsists. Indeed, the Court's interpretation of 'a television broadcast' remains, by its own admission, imprecise; the majority noted that 'there can be no absolute precision as to what in any of an infinite possibility of circumstances will constitute a television broadcast'. However, the majority did indicate that it would not necessarily consider separate segments, items or 'stories' within a prime-time news broadcast as separate 'television broadcasts' in which copyright subsists.

The High Court remitted the case to the Full Federal Court for redetermination of whether, in light of its findings on the scope of the television broadcast copyright, the excerpts shown by Ten were substantial parts of Channel Nine's programs contrary to Justice Conti's findings.

Return to top

Minority decisions

In separate judgments, Justices Kirby and Callinan both agreed with the Full Federal Court's broad construction of 'a television broadcast' as each single visual image and the accompanying sound broadcast. Both minority judgments prioritised the text of the legislation over the ancillary materials and focused on the nature of the interests to be protected by the broadcast copyright. Referring to the well-known test that 'what is worth copying is prima facie worth protecting', Justices Kirby and Callinan argued that, in the highly competitive and commercialised broadcasting industry, broadcasters have a strong interest in re-broadcasting snippets of footage from their competitors and that the broadcast copyright should protect against this conduct.

The minority judges recognised that their broad interpretation of broadcast copyright gave a stronger degree of protection to broadcasters than other copyright holders, but, while Justice Kirby was almost apologetic that his analysis led to such a result, Justice Callinan reasoned that a greater level of protection was justified in the 'nakedly commercial context' of broadcasting. 

Return to top

The consequences

Beyond confirming that broadcast copyright subsists in discrete television programs and advertisements, the High Court's decision does not offer any real comfort to those in the broadcasting industries. Whether the use of excerpts from other broadcasters' programming will be in breach of the Copyright Act continues to require the subjective determination of whether the excerpt is a 'substantial part' of the program and whether the use constitutes fair dealing.

In practice, Network Ten's victory in the High Court does not offer the certainty or comfort broadcasters would have liked.

Footnotes
  1. Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14.
  2. TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2002) 118 FCR 417.
  3. TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2001) 108 FCR 235.
  4. See, for example, Nine Network Australia Pty Ltd v Australian Broadcasting Corporation (1999) 48 IPR 333 at 340, Time Warner Entertainment Co Ltd v Channel 4 Television Corporation PLC (1993) 28 IPR 459 at 468 and Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142 at par 61.

Return to top

For further information, please contact:

Return to top

Share with

What are these?

 

 

Recent Intellectual Property publications