Amalgamated Television Services Pty Ltd v Foxtel Digital Cable Television Pty Ltd
[1996] FCA 281
•26 APRIL 1996
CATCHWORDS
STATUTE - Broadcasting Services Act 1992, s. 212(1) - re-transmission of 'free-to-air' broadcasts by subscription television broadcaster - exemption from Act's regulatory regime - whether 'service' of subscription television broadcaster 'does no more than' re-transmit programs of commercial broadcaster - interpretation - definition of 'service' - whether 'service' refers to a subscription package or to each channel of such a package - 'does no more than' does not refer to techniques of retransmission; it is directed to program content.
COPYRIGHT - Copyright Act 1968, s. 199(4) - whether subscription television broadcaster holds licences from commercial television broadcasters for re-transmission of latter's programs - whether subscription television broadcaster receives a 'broadcast' under s. 199(7) - whether commercial television broadcasters hold 'a licence or permit granted under the Broadcasting Act 1942' - Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992, s. 5(1) keeps alive commercial television licences previously allocated under the 1942 Act 'as if' allocated under 1992 Act.
Acts Interpretation Act 1901 (Cth): s. 10.
Broadcasting Act 1942
Broadcasting Services Act 1992: s. 212.
Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992: s. 5.
Copyright Act 1968: s. 25, 199(4), (7).
AMALGAMATED TELEVISION SERVICES PTY LIMITED, HSV CHANNEL 7 PTY LIMITED, SEVEN NETWORK LIMITED, TCN CHANNEL NINE PTY LIMITED, GENERAL TELEVISION CORPORATION PTY LIMITED, NINE NETWORK AUSTRALIA PTY LIMITED, TELEVISION & TELECASTERS (SYDNEY) PTY LIMITED, TELEVISION & TELECASTERS (MELBOURNE) PTY LIMITED, NETWORK TEN LIMITED v FOXTEL DIGITAL CABLE TELEVISION PTY LIMITED, FOXTEL MANAGEMENT PTY LIMITED
G 873 of 1995
LOCKHART, WILCOX and HILL JJ.
SYDNEY
26 APRIL 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. G 873 of 1995
)
GENERAL DIVISION )ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:AMALGAMATED TELEVISION SERVICES PTY LIMITED
First Appellant
HSV CHANNEL 7 PTY LIMITED
Second Appellant
SEVEN NETWORK LIMITED
Third Appellant
TCN CHANNEL NINE PTY LIMITED
Fourth Appellant
GENERAL TELEVISION CORPORATION PTY LIMITED
Fifth Appellant
NINE NETWORK AUSTRALIA PTY LIMITED
Sixth Appellant
TELEVISION & TELECASTERS (SYDNEY) PTY LIMITED
Seventh Appellant
TELEVISION & TELECASTERS (MELBOURNE) PTY LIMITED
Eighth Appellant
NETWORK TEN LIMITED
Ninth Appellant
AND:FOXTEL DIGITAL CABLE TELEVISION PTY LIMITED
First Respondent
FOXTEL MANAGEMENT PTY LIMITED
Second Respondent
COURT: LOCKHART, WILCOX and HILL JJ.
DATE: 26 APRIL 1996
PLACE: SYDNEY
MINUTE OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
The appellants pay the costs of the respondents of the appeal.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. G 873 of 1995
)
GENERAL DIVISION )ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:AMALGAMATED TELEVISION SERVICES PTY LIMITED
First Appellant
HSV CHANNEL 7 PTY LIMITED
Second Appellant
SEVEN NETWORK LIMITED
Third Appellant
TCN CHANNEL NINE PTY LIMITED
Fourth Appellant
GENERAL TELEVISION CORPORATION PTY LIMITED
Fifth Appellant
NINE NETWORK AUSTRALIA PTY LIMITED
Sixth Appellant
TELEVISION & TELECASTERS (SYDNEY) PTY LIMITED
Seventh Appellant
TELEVISION & TELECASTERS (MELBOURNE) PTY LIMITED
Eighth Appellant
NETWORK TEN LIMITED
Ninth Appellant
AND:FOXTEL DIGITAL CABLE TELEVISION PTY LIMITED
First Respondent
FOXTEL MANAGEMENT PTY LIMITED
Second Respondent
COURT: LOCKHART, WILCOX and HILL JJ
DATE: 26 APRIL 1996
PLACE: SYDNEY
REASONS FOR JUDGMENT
THE COURT
This is an appeal, by leave, from the interlocutory judgment of a judge of the Court (Davies J.), who tried the issues raised by certain paragraphs of the amended statement of claim which had earlier been ordered to be determined separately from the remaining issues. The questions before his Honour concerned the proper construction of s. 212 of the Broadcasting Services Act 1992 ('the 1992 Act'); alleged infringement by the respondents of the copyright of certain of the appellants in cinematographic films; and alleged infringement by the respondents of registered trade marks of some of the appellants. His Honour found in favour of the respondents on all these issues and dismissed the claims of the appellants with respect to them. The trade mark issue, although the subject of his Honour's findings and of the notice of appeal, was not pressed in argument on appeal.
The respondents challenged the appellants' standing to bring the proceeding before the learned primary Judge, who decided that issue in favour of the appellants. This also was not pressed in argument on appeal.
The appellants include the proprietors of the Channel 7, Channel 9 and Channel 10 commercial broadcasting television stations in Sydney and Melbourne. The respondents have established a Pay TV subscription service, operating in Sydney
and Melbourne. Transmission is effected by means of cable to the premises of subscribers to the service.
The respondent, Foxtel Digital Cable Television Pty Limited ('Cable'), holds 22 subscription television broadcasting licences allocated under Part 7 of the 1992 Act, seventeen of which have been appropriated by Cable to provide seventeen channels of a Pay TV service. The respondent, Foxtel Management Pty Limited ('Management'), does not hold a licence under the 1992 Act; but it or Cable re-transmits, without the consent of the appellants, the programs broadcast on channels 7, 9 and 10. The appellants seek to prevent the respondents from re-transmitting those programs.
The relationship between Cable and Management, and the role played by each of them in the provision of the Pay TV subscription service, were the subject of evidence before his Honour; but in the view we take of the issues raised in the appeal, nothing turns on this for present purposes. Indeed, little attention was paid to this matter at the trial. If anything subsequently turns on it (bearing in mind that the appeal is interlocutory and other issues in the case remain to be determined), it will be necessary for further evidence to be led. Generally we will not distinguish between Cable and Management, and we will simply refer to them as the respondents.
Section 212 of the 1992 Act
The first question concerns the construction of s. 212 of the 1992 Act. Section 212 came into force on 5 October 1992 and replaced provisions of the Broadcasting Act 1942 ('the 1942 Act'). It provides as follows:
'212. (1)Subject to subsection (2), the regulatory regime established by this Act does not apply to a service that does no more than:
(a)re-transmit programs that are transmitted by a national broadcasting service; or
(b)re-transmit programs that are transmitted by a commercial broadcasting licensee or a community broadcasting licensee:
(i)within the licence area of that licence; or
(ii)outside the licence area of that licence in accordance with permission in writing given by the ABA.
(2)No action, suit or proceeding lies against a person in respect of the re-transmission by the person of programs as mentioned in sub-section (1) unless, at the time of the re-transmission, the person is also a licensee.'
The appellants argued that, in re-transmitting programs on channels 7, 9 and 10 as part of the package offered by the respondents to their subscribers, the respondents are providing a service that does more than merely re-transmit those programs; hence the respondents are not exempted by s. 212(1) from the application of the regulatory regime
established by the Act, they are acting in contravention of the 1992 Act, and accordingly, they are liable for penalties.
The contention that the respondents do more than provide a re-transmission service was based on the premise that the word 'service', where it appears in sub-section (1) of s. 212, encompasses the overall service which the respondents provide to subscribers. That service comprises 22 channels of which only 5 are devoted to re-transmission. The learned primary Judge rejected this approach and held that the word 'service' refers in that context to the output of one channel.
His Honour's finding was said to be in error, principally for the following reasons:
.The words 'service' or 'services' are used interchangeably in the 1992 Act in a number of different contexts. We were referred to ss. 6, 39(1)(a), 42(ii), 73, 83(2), 93, 94(6), 116A, 118(1) and 218 which show, so it was argued, that the word has no fixed or defined meaning in relation to the number of channels provided by the relevant service.
.There is nothing in the language of the 1992 Act as a whole, or in s. 212 in particular, which precludes the word 'service' where it appears in s. 212(1) from involving consideration of the context in which the relevant service is provided.
.The concept of a service has a number of aspects. The service being provided by the respondents is part of a wider service provided jointly by them whereby subscribers to their Pay TV service receive the seventeen pay television channels in respect of which they have licences and the five 'free-to-air' channels which include the three commercial broadcasting services.
.An examination of the subscriber agreement between the respondents and their subscribers shows that the 'free-to-air' programs (on channels 7, 9 and 10) are only provided as an adjunct to the Pay TV service to which the subscribers subscribe.
.The approach of his Honour is inconsistent with the legislative policy which underlies s. 212(1). Reference was made to the immediate predecessor of the 1992 Act, namely, the 1942 Act.
.Section 212 was not intended to be a vehicle permitting Pay TV operators to transmit the programs of commercial television licensees as part of or incidental to a subscription television service.
This sufficiently summarizes the argument.
The word 'service' is not defined in the 1992 Act, although there is a definition of the expression 'broadcasting service', which relevantly means a service that delivers television programs to persons having equipment appropriate for receiving that service by whatever means the delivery is made. Some reference was made in argument to that definition; but it does not assist in the construction of s. 212(1).
Subscription television broadcasting licences are allocated under the 1992 Act on the basis of 'one licence per service' (s. 96(2)), which, in our opinion, suggests that each service is provided by a particular channel. Section 12 is of interest because it provides that, amongst other things, subscription television broadcasting services require individual licences (s. 12(1)). The notion of one licence per service applies to the allocation of most licences under the 1992 Act, although there are exceptions. Sections 17 and 18 both suggest that a 'service' consists of the output of one channel. They deal respectively with subscription narrowcasting services and open narrowcasting services. Each section speaks of such services 'whose reception is limited' for some reason.
The language of s. 212(1) itself also gives some support to the view that the 'service' there mentioned is a service which relates to a particular channel. 'Service' is described in the opening provisions of subsection (1) of s. 212 in the singular. So is the description of 'a' licensee. Some assistance is given also by the use of the disjunctive 'or' between paragraphs (a) and (b) of s. 212(1).
Upon its proper construction, s. 212(1) is referring to a service in the sense of a service provided by a particular channel; so that the regulatory regime, in particular the licensing provisions, of the 1992 Act do not apply in the case where one channel is the vehicle for the re-transmission of programs that are transmitted by a commercial broadcasting licensee, provided paragraph (i) or (ii) of s. 212(1) applies. In other words, s. 212 is intended to cover the situation where a person does no more on a particular channel than re-transmit programs that are transmitted on a commercial channel.
The explanatory memorandum to the Broadcasting Services Bill 1992 (which became the 1992 Act) stated with respect to clause 211(1) (it became s. 212(1) of the 1992 Act) that:
'It is recognized that there are small communities, or pockets within licence areas which, because of distance from main transmitters or for reasons relating to the topography of their areas, are unable to receive adequate broadcast signals. It is intended that arrangements be permitted between such communities and broadcasters for broadcasting services to be re-transmitted, unaltered to those communities ...'
The language of s. 212(1) appears to include re-transmission of programs in circumstances wider than the explanatory memorandum suggests; but the document gives a clue about the purpose which the section was intended to achieve.
The explanatory memorandum is of no real assistance in resolving the present question of construction except that it makes plain that the re-transmission of the programs of commercial television broadcasters must be 'unaltered'. There must be a faithful re-transmission of the programs as screened by the commercial broadcasters.
It follows that a person may use a channel for the re-transmission of programs of a commercial television broadcaster without the necessity of complying with the licensing and other regulatory provisions of the 1992 Act, provided each service is confined to the programs of a particular channel and the re-transmission is unaltered (to use the word appearing in the explanatory memorandum).
We do not accept the interpretation offered on behalf of the appellants that the word 'service' in s. 212(1) should be construed in the sense of the respondents' overall service by examining their general business activities. Such an interpretation involves a degree of tractability which the words of the sub-section do not permit.
A further question arises concerning the words 'does no more than' appearing in s. 212(1). We agree with the primary Judge that these words do not refer to the techniques by which re-transmission occurs. The primary Judge noted that those techniques include the division or splitting of signals, the passing of signals through de-modulators and modulators, the passing of signals of frequencies different from those at which they were received, and the transmission of the signals into a set-top unit at the subscriber's premises, steps which are taken for technical reasons and to maintain quality. In our opinion matters of that kind are not relevant in determining the meaning and application of the term 'does no more than' in s. 212(1). That expression is directed to program content, not techniques to achieve re-transmission of them.
The history of s. 212 does not support the construction advanced by the appellants. See, in particular, the 1942 Act, the relevant provisions of which were replaced by the 1992 Act. Those provisions are neutral in respect of the question presently before the Court.
Copyright
As mentioned earlier, the appellants seek to restrain the respondents from infringing their copyright in cinematographic films which constitute television programs, by re-transmitting them. The respondents deny infringement. They also contend that, even if they do infringe the appellants' copyright in the programs, they are immune from suit by the operation of s. 212(2) of the 1992 Act. The first step must be to consider whether the respondents are infringing the appellants' copyright in their television programs. If that question is answered against the appellants, so that there is no infringement by the respondents, it will be unnecessary to consider s. 212(2), at least so far as the copyright issues in the case are concerned; and they are the only relevant issues before us on appeal, notwithstanding that other causes of action are asserted by the appellants in the statement of claim.
We turn to the issues which arise under the Copyright Act 1968 ('the Copyright Act'). The respondents contend that they are not infringing the appellants' copyright in their television programs because they are to be treated in infringement proceedings as if they are the holders of a licence of the copyright granted by the appellants to cause the works to be re-transmitted to their subscribers. They base this argument upon the terms of s. 199(4) of the Copyright Act, which relevantly provides as follows:
'(4)A person who, by the reception of an authorized television broadcast ... , causes a literary, dramatic or musical work or an adaptation of such a work, an artistic work or a cinematograph film to be transmitted to subscribers to a diffusion service shall be treated, in any proceedings for infringement of the copyright, if any, in the work or film, as if the person had been the holder of a licence granted by the owner of that copyright to cause the work, adaptation or film to be transmitted by the person to subscribers to that service by the reception of the broadcast.'
It is necessary to go to s. 25 of the Copyright Act for definitions. That section provides that a reference in the Act to 'broadcasting' shall, unless the contrary intention appears, be read as a reference to broadcasting whether by way of sound broadcasting or television (s. 25(1)); and that a reference in the Copyright Act to the doing of an act by the reception of a television broadcast or sound broadcast shall be read as a reference to the doing of that act by means of receiving a broadcast from the transmission by which the broadcast is made, whether the reception of the broadcast is directly from the transmission concerned or from a re‑transmission made by any person from any place (s. 25(2)(a)).
The appellants accept that s. 199(4) would apply to the re-transmission by the respondents of the appellants' programs, if the respondents receive a television 'broadcast' of those programs. But the appellants argued that the respondents do not receive such a 'broadcast' because of the terms of subsection (7) of s. 199, which relevantly reads as follows:
'(7)A reference in this section to a broadcast shall:
(a)in the case of a television broadcast - be read as a reference to such a broadcast made by the Australian Broadcasting Corporation, by the Special Broadcasting Service Corporation, by any person with the use of facilities provided by the Special Broadcasting Service Corporation, by the holder of a licence or permit granted under the Broadcasting Act 1942 or by a person prescribed for the purposes of subparagraph 91(a)(iii); ... '
The appellants argued that the issue turns on the reference in subsection (7)(a) to 'the Broadcasting Act 1942'. It was submitted that they do not hold licences granted under the 1942 Act because that Act was repealed by the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992 ('the Transitional Provisions Act'), except for a very limited number of provisions, including Part IIID (relating to political broadcasts) which the High Court held to be invalid in Australian Capital Television Pty Limited v The Commonwealth (1992) 177 CLR 106. Reference was made to s. 5 of the Transitional Provisions Act which provides, inter alia:
'5(1)On commencement of this Act:
...
(b)each former commercial television licence continues in force as a commercial television broadcasting licence as if such a licence had been allocated to the holder under Part 4 of the new Act; ... '
It was argued on behalf of the appellants that, since the 1942 Act had been relevantly repealed, the licences granted to them thereunder ceased to have effect except in so far as they were preserved by the Transitional Provisions Act, the effect of which was that they continued in force solely by virtue of the 1992 Act, not the 1942 Act. Hence the appellants did not answer the description of the holders of licences granted under the 1942 Act within the meaning of s. 199(7); and therefore there was no relevant broadcast within the meaning of s. 199(4). In the result, so it was argued, the respondents could not be regarded for the purposes of re‑transmission as being the licensees of the appellants of the relevant copyright in the television programs.
The primary Judge accepted that argument and said that in his opinion from the date of the repeal of the relevant sections of the 1942 Act (5 October 1992) the appellants no longer held licences granted under the 1942 Act. His Honour went on to say, however, that the issue was whether the reference in s. 199(7) of the Copyright Act to the 1942 Act is to be read as a reference to the 1992 Act. He referred to s. 10 of the Acts Interpretation Act 1901 (Cth) ('the Acts Interpretation Act'), which provides:
'10.Where an Act contains a reference to a short title that is or was provided by law for the citation of another Act as originally enacted, or of another Act as amended, then, except so far as the contrary intention appears:
(a)the reference shall be construed as a reference to that other Act as originally enacted and as amended from time to time; and
(b)where that other Act has been repealed and re-enacted, with or without modifications, the reference shall be construed as including a reference to the re-enacted Act as originally enacted and as amended from time to time and, where, in connection with that reference, particular provisions of the repealed Act are referred to, being provisions to which provisions of the re-enacted Act correspond, the reference to those particular provisions shall be construed as including a reference to those corresponding provisions.'
His Honour said that s. 199(7) was intended to be ambulatory in operation and to refer, not merely to provisions in force when s. 199 came into operation, but to those provisions as amended from time to time; and it was in this light that s. 10 of the Acts Interpretation Act should be applied. In his opinion, for the purposes of s. 199(7) of the Copyright Act, the 1942 Act was repealed and re-enacted, with modifications, as the 1992 Act. He concluded that the respondents should therefore be regarded as the holders of a licence from the appellants as the owners of the copyright in the relevant works, and therefore could not be liable for infringement of their copyright.
The use of the word 'former' in s. 5(1)(b) does not, in our view, assist the argument of the appellants. It is a word used as part of the composite expression 'former commercial television licence' which is defined by s. 4, the interpretation section, of the Transitional Provisions Act. Use of the word 'former' does not suggest that s. 5(1)(b) is referring to a licence previously granted that has ceased to exist.
In our opinion the effect of s. 5(1) of the Transitional Provisions Act is to keep alive commercial television licences previously allocated under the 1942 Act and still in force when the repeal of the relevant provisions of the 1942 Act took effect. Such licences continue in force 'as if' they had been allocated under the 1992 Act (to use the language of s. 5(1)(b) of the Transitional Provisions Act), but they remain licences granted under the 1942 Act. The reference in s. 199(7) to the 1942 Act is descriptive of a licence which was in fact granted under the 1942 Act and which remains in force at the time of the alleged infringement of copyright. It is an apt description of the licence held by each of the licensed respondents with the result that s. 199(4) applies to protect each of those respondents from suit for infringement of copyright.
This conclusion accords with that of the primary Judge although reached by a different path.
It is therefore unnecessary to consider the construction of s. 212(2) of the 1992 Act. The primary Judge held that the words 'the person is also a licensee' in that subsection refer to a person who holds a relevant licence; that is to say, a person who is a licensee in respect of a broadcast, in this case the subscription television broadcasting licences held by the respondents or one of them. His Honour said that to read the words 'a licensee' as encompassing any person who holds a licence of any kind under the legislation would be to give them a meaning which had no relevance in the context. This may be so; but a cogent argument was advanced before us to support the construction that the words 'a licensee' where appearing in the subsection mean precisely what they say. Some examination was made in argument of the history of the subsection to support that construction; also to support the contrary construction which found favour with the primary Judge. We prefer to leave this question open, and thus express no preference for either construction.
We would dismiss the appeal with costs.
I certify that this and the preceding seventeen (17) pages are a true copy of the reasons for judgment herein of the Court.
Associate
Dated: 26 April 1996
Counsel for the Appellants : Mr T F Bathurst QC
Mr J Griffiths
Solicitors for the Appellants : Blake Dawson Waldron
Counsel for the Respondents : Mr D K Catterns QC
Mr R Cobden
Solicitors for the Respondents: Allen Allen & Hemsley
Date of Hearing : 15, 16 February 1996
Date of Judgment : 26 April 1996
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