Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14
11 March 2004 S150/2003
ORDER
1. Appeal allowed with costs.
2. Orders of the Full Court of the Federal Court entered on 19 July 2002 set aside.
3. Matter remitted to the Full Court of the Federal Court to determine the remaining issues in the appeal to that Court and to make the appropriate orders consistent with the judgment of this Court and upon its further consideration of the appeal, including orders disposing of the costs of the appeal to the Full Court.
On appeal from the Federal Court of Australia
Representation:
J M Ireland QC with R Cobden and C Dimitriadis for the appellant (instructed by Blake Dawson Waldron)
A J L Bannon SC with D T Kell for the respondents (instructed by Gilbert & Tobin)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Network Ten Pty Limited v TCN Channel Nine Pty Limited
Copyright – Infringement – Television broadcast – Television programme broadcast by appellant contained excerpts from programmes previously broadcast by respondent – Each excerpt of brief duration – Meaning of the "subject matter" of broadcast copyright – Whether each visual image capable of being observed as a separate image on a television screen and accompanying sounds is "a television broadcast" in which copyright subsists – Whether a "substantial part" of a television broadcast must be copied to constitute infringement.
Statutes – Construction and interpretation – Relevance of legislative history and context – Relevance of legislative history and context of similar United Kingdom statute – Copyright Act 1968 (Cth), ss 25(4), 87.
Words and phrases – "broadcast", "television broadcast", "re-broadcast", "programme", "subject-matter", "substantial part", "fixation".
McHUGH ACJ, GUMMOW AND HAYNE JJ. This appeal is brought from the decision of the Full Court of the Federal Court of Australia (Sundberg, Finkelstein and Hely JJ)[1] which allowed in part an appeal by the respondents against judgments at the trial before Conti J[2]. The issues which arise turn upon the provisions of the Copyright Act 1968 (Cth) ("the Act") as they stood before the commencement on 4 March 2001 of the Copyright Amendment (Digital Agenda) Act 2000 (Cth) ("the Amendment Act")[3].
[3]The Act sufficiently appears for the purposes of these reasons in Reprint 8.
The appellant ("Ten") is the holding company of the Ten Network, and each of the respondents ("Nine") is part of the Nine Network. The…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14
Case
[2004] HCA 14
Decision Date
CaseChat Overview and Summary
Network Ten Pty Ltd (the appellant) appealed to the High Court of Australia against a decision of the Full Court of the Federal Court concerning copyright infringement. The dispute arose from Network Ten broadcasting excerpts from television programmes previously broadcast by TCN Channel Nine Pty Ltd (the respondent). The excerpts were of brief duration.
The High Court was required to determine the meaning of "a television broadcast" for the purposes of copyright protection under the *Copyright Act 1968* (Cth) and whether copyright subsisted in each visual image and accompanying sound as a separate broadcast. A further issue was whether the copying of a "substantial part" of a television broadcast constituted infringement. The Court also considered the relevance of legislative history and the context of similar United Kingdom legislation.
The High Court allowed the appeal, setting aside the orders of the Full Court of the Federal Court. The Court noted a division of opinion among the judges regarding the extent of copyright protection in television broadcasts under the Act as it stood before the 2000 amendments. The matter was remitted to the Full Court of the Federal Court to determine the remaining issues in the appeal, including those relating to substantiality and to make appropriate orders, including those for costs.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Orders of the Full Court of the Federal Court entered on 19 July 2002 set aside.
3. Matter remitted to the Full Court of the Federal Court to determine the remaining issues in the appeal to that Court and to make the appropriate orders consistent with the judgment of this Court and upon its further consideration of the appeal, including orders disposing of the costs of the appeal to the Full Court.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
ACJ, GUMMOW AND HAYNE JJ
KIRBY J
(dissent)
Reference was made in argument to the position under The Copyright Act of 1976 ("the US Act") and something should be said to indicate that this system is at odds with the "single image" interpretation of the Australian legislation. Under the US Act, copyright protection subsists in original works of authorship including "audiovisual works" which are "fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device" (s 102(a)). The situation is said to be[58]:"Because it is common practice for radio and television broadcasters to simultaneously record live broadcasts, this extension of the concept of fixation would seem to effectively protect virtually all broadcasts."However, "audiovisual works" are defined in s 101 as:"works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied". (emphasis added)[58]Nimmer on Copyright, (2003), §2.03[B][2]. See further §1.08[C][2] and Production Contractors Inc v WGN Confidential Broadcasting Co 622 F Supp 1500 at 1503 (1985).Conclusions The appeal should be allowed with costs. However, there remains for consideration by the Full Court the determination of so much of Nine's appeal to that Court as turns upon the challenge to the treatment by the primary judge of the issues of substantiality under s 14(1)(a) of the Act. There also remains the question of what orders the Full Court should make in place of those entered on 19 July 2002 in the light both of the reasons of this Court and of the Full Court's consideration of the appeal to that Court. The orders entered on 19 July 2002 should be set aside and the matter be remitted to the Full Court for determination of the remaining grounds of appeal to that Court and for the making of appropriate orders to dispose of that appeal. The costs of all the proceedings in the Full Court should be for that Court. In this appeal, there is a division of opinion in the Court concerning the extent of copyright protection of a television broadcast within Pt IV of the Copyright Act 1968 (Cth) ("the Act"). As explained elsewhere, the case concerns the Act in the form in which it appeared before amendments introduced by the Copyright Amendment (Digital Agenda) Act 2000 (Cth). The enactment of copyright protection in a television broadcast is a relatively recent development. It was provided in the United Kingdom in 1956[59] following a 1952 report of the Gregory Committee[60]. In Australia, legislation to introduce such protection, substantially copying the United Kingdom Act, was first enacted in 1968[61].[59]Copyright Act 1956 (UK).[60]United Kingdom, Report of the Copyright Committee, (1952), Cmd 8662.[61]The Act, s 87 ("Nature of copyright in television broadcasts and sound broadcasts").A difference over copyright infringement