Upcoming Mallesons seminarsThe High Court today has clarified the extent of the copyright monopoly owned by Australian television broadcasters in its judgment in "The Panel" case1.
The decision is significant both for television licensees from the perspective of protecting their valuable programming rights and also for any publishers who copy and republish or retransmit excerpts from television programs as part of their own publications.
By majority, the High Court has found that the whole of a television program constitutes a television broadcast under the Copyright Act. Therefore, copyright in a television broadcast will only be infringed if a "substantial part" has been copied and/or re-broadcast. This overturns the earlier judgment of the Full Federal Court2 which held that a single image on a television screen is a television broadcast and thus copying or re-broadcasting any television image, however brief, may infringe the copyright in the broadcast.
Background
The case concerns the reproduction on Channel Ten's program, The Panel, of 20 segments from certain Channel Nine television programs. The segments were of various lengths, ranging from footage of the Prime Minister singing "Happy Birthday" to Sir Donald Bradman on The Midday Show to scenes from Days of Our Lives showing the famous character Marlena, levitating. Channel Nine alleged that use of the segments on The Panel constituted copying and re-broadcast of its television broadcasts, thus infringing its copyright pursuant to s 87 (a) and (c) of the Copyright Act 1968 (Cwlth).
At first instance, the trial judge found that a "television broadcast" consisted of a television program, or segments of a program with thematic consistency, not including breaks for advertisements. The Full Federal Court overturned this decision, finding that the precise wording of the Copyright Act means there is copyright in each and every one of the visual images which constitute a television broadcast. On that basis, copying by Channel Ten of any of those images would amount to infringement of Channel Nine's copyright (subject to any fair dealing defence), without the need to determine whether or not a substantial part of the broadcast had been taken.
The High Court's decision
The High Court soundly rejected the Full Federal Court's interpretation of the Copyright Act and the meaning of television broadcast, and instead arrived at a conclusion consistent with the trial judge. Notably, the High Court observed that the Full Court's approach erroneously ignored the issue of substantiality and would extend the form of copyright protection available to television broadcasters beyond that which is enjoyed by owners of other forms of copyright embodied in a television broadcast (such as the underlying script, music and film) and beyond the protection which Parliament had intended to give.
The High Court looked at the provisions of the Copyright Act as a whole and in their historical and commercial context. In particular, the High Court upheld the "pedigree" and importance of the test of substantiality, noting at [47] that "the requirement that an infringer who takes less than the whole of the protected subject-matter must take at least a substantial part thereof plays a well-established and central part in copyright law. Questions of quality…as well as quantity arise…".
However, the High Court did not dismiss the possibility that one or more photographs or single images may infringe the television broadcast copyright. That will depend on the application of the "substantial part" test which has been returned to the Full Federal Court for determination. This will involve analysis of the trial judge's earlier findings that consideration of both the quality and quantity of what was taken from Channel Nine's commercial interest is required, including the commercial purpose of the copying; exercising a sense of fairness and degree in all the circumstances.
What does the decision mean?
Whilst the judgment has not set out a precise definition of "television broadcast", it is clear that everyday notions of television programs as they are listed in TV guides will meet the description, as will television commercials. Broadcasters and publishers may reproduce parts of such programs for their own purposes without the owner's consent provided what is taken is less than a substantial part of the program. Further, a substantial part of such programs may legitimately be copied if the user of the material can establish a defence of fair dealing which requires proof that the copyright material is used for the purpose of criticism or review or for reporting the news. Whilst this will always be a question of fact specific to the circumstances of each case, the Full Federal Court (whose judgment on this issue was not affected by today's decision) provides the following guidelines:
- fair dealing may involve the use of copyright material for commercial purposes, including entertainment and achieving ratings. It may also involve humour and "poking fun", provided that the purpose of the use remains genuine criticism, review or reporting news;
- news is not restricted to current events provided the news component exists independently of the copyright material which has been copied or re-broadcast;
- the criticism or review may be of the copyright work or some other work;
- copying for its own sake without genuine criticism or review or reporting news will not be sufficient to attract the defence; and
- criticism or review may be harsh, strongly expressed or unbalanced.
Justine Munsie
Senior Associate
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justine.munsie@mallesons.com
Maurice Gonsalves
Partner
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maurice.gonsalves@mallesons.com
1 Network Ten Pty Ltd v TCN Channel Nine Pty Limited [2004] HCA 14
2 TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2002) 55 IPR 112
If you would like to find out more about "The Panel" Case, you are invited to attend our seminar, "Just do it? Legal issues for the advertising, marketing and media industries" at Mallesons Sydney office on 25 March 2004, 8.30am to 10.00am.
For details, please contact
Lara Kemeny
T +61 2 9296 3591
lara.kemeny@mallesons.com
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