Network Ten Pty Ltd v TCN Channel Nine Pty Ltd

[2003] HCATrans 338

[2003] HCATrans 338

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S150 of 2003

B e t w e e n -

NETWORK TEN PTY LIMITED

Appellant

and

TCN CHANNEL NINE PTY LIMITED

First Respondent

QUEENSLAND TELEVISION LIMITED

Second Respondent

GENERAL TELEVISION CORPORATION PTY LIMITED

Third Respondent

McHUGH ACJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 5 SEPTEMBER 2003, AT 10.06 AM

Copyright in the High Court of Australia

__________________

MR J.M. IRELAND, QC:   Your Honours, I appear with my learned friends, MR R. COBDEN and MR C. DIMITRIADIS, on behalf of the appellant.  (instructed by Blake Dawson Waldron)

MR A.J.L. BANNON, SC:   May it please the Court, I appear for the respondents with my learned friend, MR D.T. KELL.  (instructed by Gilbert & Tobin)

McHUGH ACJ:   Yes, Mr Ireland.

MR IRELAND:   Your Honours, the Copyright Act 1968 introduced into Australian law for the first time a protection for television and sound broadcasts. That step had been first taken in the United Kingdom in their Act of 1956, upon which the Australian Act was substantially based. This case raises for the first time in either jurisdiction the question of the precise subject matter in which television broadcast copyright subsists and, by necessary corollary, whether the well‑understood doctrine of substantiality in copyright law has any part to play in evaluating the issue of infringement of copyright in a television broadcast.

The copyright law applicable for the purposes of considering this appeal is the law as it stood prior to the 2001 amendments, which introduced the digital agenda provisions.  That is conveniently found, your Honours, in Reprint No 8 of the Copyright Act – I am not sure whether your Honours have that.  We have also prepared a bundle of materials, which I would seek to pass up, which includes relevant provisions.

KIRBY J:   The digital agenda amendments do not affect the question that is for decision, do they?

MR IRELAND:   No, your Honour.

KIRBY J:   I mean, they do not solve the problem.

MR IRELAND:   No.  It is just that, if anyone has kept one, Reprint No 8 is a handy consolidation of the relevant law for this case, that is all.  I think we have sent that message, but may I hand up just a bundle of provisions which we have supplied to the other side.  It is not only the copyright legislation that is included in that bundle.

Your Honours, the primary provision of the Australian Copyright Act which confers the relevant copyright here is section 91.  That should be found on page 3 of the bundle I have just provided, and it is a composite provision which deals both with television broadcasts and sound broadcasts.  Section 91A deals with television broadcasts, and it is that subject matter with which your Honours are concerned today.

GUMMOW J:   Now, 91 is linked to the exportation – if that is the word ‑ of licences?

MR IRELAND:   Yes, your Honour.

GUMMOW J:   The licensing system, both for commercial licences and the statutory systems for the ABC and SBS, require programs to be broadcast.

MR IRELAND:   Yes, your Honour.  In the next tab, broadcasting, we have included the licensing legislation.  The relevant licensing legislation at the time is at page 13 of the bundle.  It was the Broadcasting Services Act 1992.

HAYNE J:   What you have not included in that is the definition in section 6 of “program”, which is, I think, a definition which it is as well to have regard.

MR IRELAND:   Yes, your Honour.  We have the legislation – I am sorry, this should have been also in these excerpts.  Responding to what Justice Gummow said, and your Honour Justice Hayne, section 14 of the applicable legislation is really an imperative upon commercial broadcasters, and both the parties before this Court today are commercial broadcasters, the rights holders.  Channel Nine companies are commercial broadcasters.  They are required, as a condition of holding this commercial broadcast licence:

provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public ‑ 

GUMMOW J:   “Program” was defined in section 6 of the 1992 Act:

in relation to broadcasting service, means:

(a)  matter the primary purpose of which is to entertain, to educate or to inform an audience; or

(b)  advertising or sponsorship matter, whether or not of a commercial kind.

MR IRELAND:   Yes, your Honour.  That was the definition, I think, to which his Honour Justice Hayne was referring ‑ ‑ ‑

GUMMOW J:   Yes, it is.  Was that in the 1942 Act?

MR IRELAND:   No, it was not, your Honour.  We have, thanks to our learned friends, a bundle of, I hope, the relevant legislation as it progressed under the Broadcasting Act in its various amendments.  Could that be handed up now so that your Honours have it.  If that is appropriate, your Honours.  While that is being done, your Honours, we think in the original 1942 Act the definition of “program” was “includes advertisement and any other matter”.

GUMMOW J:   In the 1942 Act?  Is that in the bundle?

MR IRELAND:   I will have that checked.  It certainly was the prevailing definition before the one that is in the 1992 Act.

McHUGH ACJ:   I do not think there was a definition of “program” in the 1942 Act.

MR IRELAND:   Your Honour, the only significance we gain from that is that that earlier definition is that “program” was expressed to include advertisements.  That arose in this case because Justice Conti, the trial judge, thought that each individual advertisement might be a program.

GUMMOW J:   You had better find this earlier definition at some stage.

MR IRELAND:   Yes, I will have that obtained.

KIRBY J:   Just as a background, could you tell me - I gather that the excerpts were only matters of seconds, or very short.

MR IRELAND:   Yes, your Honour.  In most cases under one per cent of the original material.

KIRBY J:   Was this a sort of ongoing fun tension between the two channels?  Did The Panel program include excerpts from other television stations with the neutrality, say, of The Media Report, where they have horrible little excerpts from all the channels, or did they pick on Channel Nine? 

MR IRELAND:   Mr Bannon will, in a hurt way, say that we were picking on Channel Nine, but page 465 of the appeal book shows the various sources of this ingenious material over a number of Panel episodes.  Your Honour will see that the footage, as it is called, came from the ABC and from Channel Seven, Channel Nine and other sources, depending upon the composition of the program and the themes which the presenters were trying to illustrate.

KIRBY J:   Maybe it was a compliment to Channel Nine that they used a lot of Channel Nine’s material.  It is a popular channel.

MR IRELAND:   It did not seem to have that impact, your Honour.

CALLINAN J:   Mr Ireland, I have never seen the program The Panel.  Just tell me, what is it about?

KIRBY J:   It is mostly about football, is it not?

MR IRELAND:   No, your Honour is thinking of The Footy Show.

KIRBY J:   I quickly leave it, once they start talking about that.

CALLINAN J:   Just in a nutshell, what ‑ ‑ ‑

MR IRELAND:   Your Honour, The Panel program, which is the subject of this case, was a weekly program in which a number of permanent members of a cast, two or three, I think, usually, and guests ‑ ‑ ‑

CALLINAN J:   Celebrity guests.

MR IRELAND:    ‑ ‑ ‑ who said they were celebrities ‑ ‑ ‑

KIRBY J:   Or so‑called celebrities.

MR IRELAND:    ‑ ‑ ‑ would be involved in what seemed to be generally a review of things that had happened on television.  Sometimes it was satirical and sometimes ‑ ‑ ‑

GUMMOW J:   In the preceding week?

MR IRELAND:   Not always, your Honour, but usually.  Because it went from week to week, it tended to look at what had happened in the previous seven days, but sometimes something would come out of the archives, as it were, and be introduced, so it was not insistently just the previous seven days.  So there would then be a piece of footage shown, usually introduced by one of the panel, who said, “Did you see this on Thursday’s edition?”, and then something short, usually, would be shown and some comment would be made either about the way in which the television station had presented the matter, or, if it were news, whether it was newsworthy – a variety of approaches, but, as his Honour the trial judge said, usually satirical.

KIRBY J:   This is like the way lawyers are obsessed with other lawyers.  This is television obsessed with other television people.

MR IRELAND:   Yes.

CALLINAN J:   Like the navel-gazing media section of The Australian on Thursday.

MR IRELAND:   Yes, but generally light hearted, sometimes serious, and his Honour the trial judge found with satirical objects from time to time.  That led, of course, to a question which Channel Nine sought to ventilate by saying “Well, is it legitimate to lift short pieces of our broadcast and play with them in this way?”  The immediate answer to most of these questions, which the respondents will submit, is that this is dealt with by the fair dealing provisions, as they apply to television broadcasts.  They are sections 103A and 103B of the Act which allow fair dealing, as it is generally called, either in one instance for the purpose of criticism or review or, in the other instance, for the purpose of news reporting.  So that is to some degree ‑ ‑ ‑

KIRBY J:   But that is a defence, is it not?

MR IRELAND:   That is a defence to infringement.

KIRBY J:   So the question is whether you go into the maze and whether you go out through the defence.  Are we concentrating on whether you go into the maze?

MR IRELAND:   That is so.

KIRBY J:   You say you do not even get into the maze?

MR IRELAND:   No, your Honour.  We say that the test of substantiality is the doorkeeper of that maze.

KIRBY J:   Why do you need that?  Why are you not content to rely on the defence?

MR IRELAND:   Because there may be circumstances, your Honour, where the strictures of the defence cannot be made out and they are detailed.  In every area of copyright law yet examined, the primal question of significant part introduces itself into an analysis of what is an infringement.  One either takes the whole of the work or subject matter or a substantial part, as section 14 of the Act tells us. 

Now, what has happened in this case is the Full Court, contrary to the trial judge, has held that one does not enter upon that question singularly, in relation to television broadcast, because they are a continuous stream of images, each image being treated, in effect, as a separately protected television broadcast.

KIRBY J:   Depending on the language of the Act, it would not be a surprising scheme for the Act to cast a wide blanket of copyright over the broadcast material and then to say, “But you can get out of this if it is an insubstantial use of it”.

MR IRELAND:   That is so.

KIRBY J:   That would be quite a sensible sort of a scheme, one would think, and on the face of things – at least, on a literal interpretation – that is what the Act has done.

MR IRELAND:   Since the earliest Copyright Acts, this notion of substantiality has been treated as a governor upon, really, free speech, in the use of small parts of material which are not treated as justifying separate protection.  Of course, in the broadcasting context, that sort of free use, where it is not damaging to the copyright subject matter, is a welcome thing in the public arena.

Just to respond, your Honour asked why do you need this approach, why will the defences not do for you?  Could I just give your Honours the reference; it was volume 4 of the appeal book at 721, and you will see that, at the end of the day, we could not make out a defence for a number of segments which were taken under the fair dealing provisions.  They are catalogued at 721 in volume 4 of the appeal book.  Interestingly, and perhaps unsurprisingly, the Full Court took a different view on the fair dealing issues in some cases from that taken by the trial judge, and then different members of the Full Court took a different view on different items.

GUMMOW J:   Yes, now, that brings us to where we stand in all of this.

MR IRELAND:   Yes, your Honour.

GUMMOW J:   Assume we are in your favour on construction for a moment, what then happens in the litigation?  There has been no Full Court determination of substantiality, has there?

MR IRELAND:   No, there has not.  It had to go back, your Honour.

GUMMOW J:   It would have to go back for that.

MR IRELAND:   Unless your Honours want to spend the next two weeks looking at the video tapes.

GUMMOW J:   I think some of my colleagues might.

MR IRELAND:   That is our approach, your Honour.

GUMMOW J:   It would have to go back, would it not?  But they are not the orders you seek at the moment?

MR IRELAND:   Yes, unless your Honours were of the view that the test for substantiality which Justice Conti posited was correct, in which case he has judged it by the correct test what is really a jury question, and there is nowhere else to go, for the respondents.

GUMMOW J:   But there has been no application of Justice Conti’s substantiality test by the Full Court, has there?

MR IRELAND:   No, because that was not ‑ ‑ ‑

GUMMOW J:   So there is an unresolved appeal issue there?

MR IRELAND:   This is beginning to sound familiar, your Honour.

GUMMOW J:   Yes, that is right.  But there would be an unresolved appeal issue, would there not?

MR IRELAND:   Yes, I accept that, your Honour, because the Full Court in the approach that it took said, “We do not go there, there is just no issue of substantiality to judge”, and hence no reconsideration or revisitation of what Justice Conti had to say about it.

HAYNE J:   But that entails, does it, that if, for example, the relevant integer is program, as distinct from 24‑hour broadcasting, that there is still a live issue about whether the comparatively short pieces taken were substantial or not?

MR IRELAND:   Your Honours, that was fought in the Full Federal Court but not determined by that Full Bench, for the reasons I have just stated. Whether it is alive ‑ ‑ ‑

HAYNE J:   I understand it was not determined, but it is still alive?

MR IRELAND:   Whether it is alive is in the hands of my learned friend, I think, and he seems to be alive.

GUMMOW J:   So does that mean there would have to be an examination in the Full Court as against whatever we might say was the meaning of “broadcast”, in the program sense?

MR IRELAND:   That is right.

GUMMOW J:   That having been applied, there would be a question then of whether there were substantial parts taken of those so‑identified programs, broadcasts.

MR IRELAND:   In point of fact.

GUMMOW J:   Yes, in point of fact.

MR IRELAND:   Yes, your Honour, that is the position of it.

GUMMOW J:   But all that would have to go back.

MR IRELAND:   Yes, it would.  Your Honours have noted that both of these parties were commercial licensed broadcasters at the time.  Your Honours also know, I think, that the Full Court ‑ ‑ ‑

KIRBY J:   The outcome in this case would also affect a program like Media Watch, would it not?

MR IRELAND:   Yes.

KIRBY J:   That is a program we are more likely to be familiar with.

MR IRELAND:   Yes.

CALLINAN J:   Except there would be no question about fair dealing there, I would have thought – defence.

MR IRELAND:   There always seems to be a question about fair dealing, your Honour, and that is because sections 103A and 103B have particular technical strictures about them, about attribution and things such as that which one can fall foul of, occasionally.

CALLINAN J:   But, in general, there is no doubt about the thrust of Media Watch.  It is a critical reviewing program.

MR IRELAND:   Criticism or review.  Usually it is, your Honour.

CALLINAN J:   It would only be a very technical sort of fault that it might fall into ‑ ‑ ‑

MR IRELAND:   Yes, your Honour, I would think so.

KIRBY J:   One would not think one would adopt, at least on the issue and level on which you are arguing, a different principle because of the nature program.  I mean, just because some people prefer to watch Media Watch than The Panel.  I have watched The Panel, from time to time, for short periods and it is quite amusing and interesting, until they get on to football.

MR IRELAND:   Yes.  I have not, your Honour, and I am pleased to hear it.  We have seen all the tapes and one gets from ‑ ‑ ‑

KIRBY J:   Yes, we have been told about those.

MR IRELAND:   This Court is not being asked to look at those tapes for the present purposes of the argument.  On the primary issue of the identification of the television broadcast the Full Court’s decision was that section 25(4)(a) of the Act led to the answer.  That section which is found at page 2 of the bound book that I handed up, at the foot of the page.  You will see that section 25 is “Provisions relating to broadcasting”, and there are a number of them.

GUMMOW J:   The first thing to note is that it is in an interpretation part of the Act.

MR IRELAND:   Yes, it is.

GUMMOW J:   Part 1.  Does this phrase “cinematograph film of a television broadcast” appear anywhere else, other than 87?

MR IRELAND:   No, your Honour.  Your Honours see section 25(4) says this:

(a)  a reference to a cinematograph film of a television broadcast shall be read as including a reference to a cinematograph film, or a photograph, of any of the visual images comprised in the broadcast ‑ ‑ ‑

KIRBY J:   That is pretty broad, is it not?

MR IRELAND:   Yes, but, as Justice Gummow has highlighted, there is really only one provision where those words appear and section 87 is that provision, over the page.

KIRBY J:   Yes, but together with the provision that you read to us earlier of 91(a)(iii), in your case, and (b), it rather confirms the impression that it is casting the blanket wide.

GUMMOW J:   No, it is not.  It is narrowing, is it not, because it is a peculiar cinematograph film?  It does not have any sound.

MR IRELAND:   Yes.  Correct.  It is only directing itself, your Honour, to the sequence of images.

GUMMOW J:   It is necessary, you say, to do it that way for the drafting purposes of 87(a) and 87(b).

MR IRELAND:   That is so.  Can I just say it now ‑ because it might be significant – one consequence of the textual approach of letting section 25(4)(a) drive the consideration of section 87 is that, in the case of a television broadcast, protection is afforded to, on the Full Court’s approach, every one in a series of at least perceptible passages in television – at least perceptible.  There might be an argument about whether an imperceptible visual image can be protected, and arguably, at the extreme, the sounds that go along with those snippets, but the problem with the thesis is that it does not give you an equivalent protection for sound broadcast, because, in the case of sound broadcast, there is no provision like section 25(4)(a) which can do that dissection.

HAYNE J:   Which suggests, does not it, that one needs to begin the examination in 87?

MR IRELAND:   Yes, your Honour.

HAYNE J:   And that to begin examination by attempting to understand the meaning and reach of 25(4)(a) ‑ ‑ ‑

MR IRELAND:   It is the wrong starting point, in our submission, your Honour.

HAYNE J:   It does not prove a particularly useful starting point, at least.  Why do you not begin at 87?

MR IRELAND:   We do, your Honour.  We have started at 91 to find out what the right is, and we move to 87.

GUMMOW J:   How would 87(c) work on this interpretation of 25(4) ‑ ‑ ‑

MR IRELAND:   That is the mystery of Justice Hely’s judgment.  His Honour never tells us that.  It is in an atmospheric way that because section 87(a) has been sliced up by the application of section 25(4)(a), it ought to be conformable, and hence section 87(c) should be treated in the same way, but there is no textual way of achieving that.

HAYNE J:   Because otherwise you are giving television broadcast differential operation or meaning in each of (a), (b), (c), are you not, or, at least, as between (a) and (b) on the one hand and (c) on the other?

MR IRELAND:   Yes, your Honour.  As we have said, I think, in our written submissions, we prefer the sequence:  section 91, section 87 and then section 25(4).  Otherwise, really, the tail is wagging the dog.

GUMMOW J:   Well, there is a different “dog” with 87(c). 

MR IRELAND:   That is so.  One of the dogs.

GUMMOW J:   What was happening here, in fact, really was rebroadcasting, was it not?

MR IRELAND:   Correct, but can I just tell your Honour the facts ‑ ‑ ‑

GUMMOW J:   In other words, Mr Bannon’s clients are not complaining, really, about what was done inside your studios where there was a recording made and kept.  You were not flogging the recording off to anybody?

MR IRELAND:   No, no.  There is no commercial ‑ ‑ ‑

GUMMOW J:   It was the commercial broadcasting that was the ‑ ‑ ‑

MR IRELAND:   In order for us to show a segment of The Panel, we had to capture it on tape, and it was typically a few seconds on what was called a cartridge, or, colloquially, a cart, I think.  That was held – the show went out live, I think, and therefore, in order to rebroadcast it, that cartridge with the short excerpt had to be available at the right time so a button could be pushed.  Then the broadcast, which is the commercially significant matter, takes place.  So it is the broadcasting ‑ ‑ ‑

KIRBY J:   You are using something which Channel Nine has devoted its energies, imagination, money, investment, and so on to produce, and then it goes out and people no doubt watch and tape your program, including the part from Channel Nine.

MR IRELAND:   Yes.  Your Honour, we accept the position that if we had taken a substantial part of any of their broadcast, so identified with proper approach, there would be a case for an infringement.  The question is, was the small amount that we took a substantial part?

KIRBY J:   Yes, but where in the Act do you find a textual basis for your opposition?

MR IRELAND:   Section 14.

KIRBY J:   Apart from the defence?

MR IRELAND:   Your Honour, I have to start, effectively, with section 87 and that lays out the boundaries of what the exclusive rights are.  Then the infringement section is section 101 – that is found at page 4 of these materials – and could I just say that section 101 applies to all Part IV subject matter.  It is not exclusive to broadcast, but it operates in the same way because all Part IV subject matter isolates the exclusive rights of the copyright owner and then section 101 operates on those, in the case of a television broadcast, by saying that we would infringe if:

not being the owner of the copyright, and without the licence of the owner of the copyright in Australia . . . any act comprised in the copyright –

and that takes you straight back to section 87.

GUMMOW J:   Were any of these clips, if I can use that word, clips of earlier broadcasts where there was an underlying work, that is to say, literary dramatic work?

MR IRELAND:   Yes, and often a film which is of subject matter other than ‑ ‑ ‑

GUMMOW J:   How does the Full Court – if you have some angry author out there, what does he do about what has happened in terms of infringement of his Part III copyright?

MR IRELAND:   In the first instance, Channel Nine will get the necessary licences for its broadcast, one would expect, through the collecting societies or otherwise to include a separately protected work or other subject matter in its own broadcast so that that owner gets paid at that level, if I can use that expression.  Insofar as our use of the broadcast material by rebroadcast has not been specifically licensed, these angry people if they wanted to do it, might have a case such as the scriptwriters.

GUMMOW J:   Yes, but they would run into section 14.

MR IRELAND:   They would, but apparently not the broadcast.

GUMMOW J:   Which seems, you say, perverse.

MR IRELAND:   Yes, we do.  We have said it in the written submissions.  It does seem that alone among all copyrights that this one should have such a rigorous and continuing application as to every moment of broadcast is at least, prima facie, surprising.

KIRBY J:   Why is that, given that this is the most potent form of communication that now exists in the world, save perhaps for the Internet now?

MR IRELAND:   Your Honour, certainly at the time this Act was brought in it was not in that capacity.  It has become that since ‑ ‑ ‑

KIRBY J:   It would not be the first piece of legislation which, because of supervening legislation, has not, as it were, accommodated all the nuances or has inconsistencies within it.

MR IRELAND:   The other thing that has to be remembered, your Honour, is that – and I know your Honours are conscious of this – but Part IV copyrights, which are films, sound recordings, broadcasts and published editions, are all copyrights where there is no originality required.  The old‑fashioned copyright that was protected depended upon originality.

GUMMOW J:   It depended upon the notion of property, incorporeal property of an author, et cetera.

MR IRELAND:   Yes, your Honour, but protected because of the originality.

GUMMOW J:   These television stations do not have incorporeal property ‑ ‑ ‑

MR IRELAND:   No, they have hardware.  They have infrastructure that sends a signal.

GUMMOW J:   They send cameras along to film football matches.

KIRBY J:   That is against you because that means this is a per se copyright.

MR IRELAND:   It is a per se copyright because it ‑ ‑ ‑

KIRBY J:   You do not need any originality, just the fact of it.

MR IRELAND:   Well, there are some suggestions in the text that you do need some sort of originality but the prevailing wisdom seems to be that you do not.

KIRBY J:   Are you arguing for that?

MR IRELAND:   No, but your Honour, the fact that you get the copyright without a requirement for originality, we would suggest tells against an application which would exclude a fundamental principle of copyright law, and that is the requirement for an infringement to be for the whole of that which is protected or a substantial part of it.  That is really the primal provision, we suggest, in section 14, which is where I was heading, I think, when your Honour asked me the last question.

KIRBY J:   That is one way to solve it; the other is to say it tells for a broad interpretation of fair-dealing defence.

MR IRELAND:   Your Honour, our submission is, and I have said it twice, that the fair-dealing defences do not accommodate all cases of legitimate and insubstantial use of copyright material and the fair-dealing defences have their counterpart in Part III subject matter more or less the same.

KIRBY J:   Would you just tell me why that is so?  What is the weakness of the fair-dealing defence?  What is the flaw?

MR IRELAND:   Justice Conti made the point that what might be treated as just generally satire by a viewer probably does not fit easily into either of the fair‑dealing defences; it is certainly not the reported news.

KIRBY J:   Why not?  I mean, satire is often the most potent way of communicating important social events.

MR IRELAND:   I am putting it round the other way.  The fact that one satirises a particular moment in television does not necessarily mean that that is newsworthy.  It is rather difficult in a subject matter that is not palpably news, that is recent events, to get the benefit of the news reporting fair-dealing defence.  Most of these questions here were judged in our favour under the criticism and review alternative, and that involves matters of attribution and the like.  So a balance is struck.  Your Honour appreciates that there is no limit on what we can take if the fair-dealing defence applies.  So it is controlling a different matter.  It is protecting a specific type of use when even therefore the commercial property, if it is such, is completely taken.  That is what fair dealing absolves you from.

GUMMOW J:   This expression “audio‑visual item” in 103A, is that defined?

MR IRELAND:   Yes it is, your Honour.  It is in that Part, your Honour, 100A.

GUMMOW J:   Thank you.  It is going to be pretty hard to apply 103A to one’s particular image, that is the discrete audio ‑visual item.

MR IRELAND:   I was coming to that, your Honour.  We say it just does not fit as a way of controlling insubstantial use.  Why, one may ask, does one abandon, we say, the primary provision in copyright law that insubstantial use is the matter that cannot be subject to infringement action?  I think I have mentioned to your Honours that these Part IV copyrights are of four types, and I will not go to the sections unless I am required to do so.  They share the lack of any requirement for originality.

GUMMOW J:   But television broadcasts and sound broadcasts are different, are they not, from sound recordings and cinematographic films, because they are incorporeal.  That is a known embodiment.

MR IRELAND:   Well, the Americans say there is no fixation.

GUMMOW J:   And 87(a) and (b) are an attempt to translate into fixation, are they not?

MR IRELAND:   That is so.  It starts this way, I suppose.  There is a signal sent from a television station.  It has to be broadcasting to the public.  That probably means it has to be on a wavelength where the public can receive it.  In other words, if you fire it off on a channel that nobody has and it is never received by the public one would expect that it is not a television broadcast because it has not reached its destination.  That is the first point.  But given that it does reach its destination it is then translated by a television set into something that can be seen.  If there is no more apparent, it is evanescent and it is gone.  The television set technically can be a video recorder; it is the same technology, you can put it on a tape.  It then makes what the Act calls a cinematograph film of the broadcast.  So by capturing the signal on video tape in those moments two things happen:  one is there is a reception of the broadcast and, secondly, there is a making of a cinematograph film in the way the Act treats these things.

KIRBY J:   And because normally we have moved beyond the silent film age, (a) and (b) are expected to work together, are they, in respect of television broadcast?

MR IRELAND:   Yes.  Your Honour is looking at section 87(a)?

KIRBY J:   Yes.

MR IRELAND:   Section 87(a) separates out the vision for special treatment, our thesis being that it does that in order to make clear that a photograph of possibly one image, but more likely a series of relevant images, can count as a reproduction.

KIRBY J:   But your problem is a textual one.  How do you get that out of the text?  You argue for a single image or maybe a few images in order to meet your case ‑ ‑ ‑

MR IRELAND:   No it is not my case.  That is the other side’s case, your Honour.

KIRBY J:   Well, how do you ‑ ‑ ‑

MR IRELAND:   What we say is that the making of film (by the taking of a photograph), which section 25(4)(a) allows, of visual images, can operate ‑ that is visual images of a broadcast which is never captured, which remains evanescent in the first example I have given, the taking and capturing of that image as a photograph can count as a reproduction in the relevant sense and count therefore technically as a way in which one can infringe.  But it does not answer the question whether the selection of that one image or that group of images itself constitutes a substantial part of any particular broadcast.

KIRBY J:   Where is “substantial part”?  I look and I look again to section 87(a) and I cannot see those words.

MR IRELAND:   No, it is in section 14, your Honour.  That is where I was heading.  Section 14 applies across the board.  It applies to television broadcast because it applies to both “work or other subject ‑matter”.  It says:

unless the contrary intention appears:

(a) a reference to the doing of an act in relation to a work or other subject‑matter shall be read as including a reference to the doing of that act in relation to a substantial part of the work or other subject‑matter ‑ ‑ ‑

KIRBY J:   What is the significance of “including” as distinct from “meaning”?  That rather suggests that it has its ordinary meaning plus the doing of an act in the substantial part of the work.

MR IRELAND:   The ordinary meaning would be to take the whole of the subject matter, and the extended meaning is to take a substantial part.  Therefore, the greater includes the lesser, in the structure of section 14 of the Act.

GUMMOW J:   Your complaint is that on the Full Court’s construction this alone of all these various copyright heads can involve infringement with less than a substantial part?

MR IRELAND:   Yes.

GUMMOW J:   So, in other words, it is even ‑ ‑ ‑

MR IRELAND:   More powerful in that sense.

GUMMOW J:   Yes.

HAYNE J:   The inclusion in 25(4) of the reference to single image would be unnecessary if the broadcast were itself the single image.

MR IRELAND:   That is also so, your Honour.

HAYNE J:   The whole thesis of 25(4), with its reference to “cinematograph film” which does not fit easily with single image, plus the inclusion of single image is that broadcast is larger than single image.  Leave aside the technical difficulty that I suspect but do not know existed when these provisions were first introduced in the days of black and white television where the image was created by line and there never was objectively a single image, there was the perception of image because the eye was slower than the electron.

MR IRELAND:   Yes, your Honour.  That still happens on colour television.  It is not, as I understand the position, what – a gun fires a line of dots and it fires 525 lines so many times a second.  The eye is tricked, just as Walt Disney discovered by ruffling a pack of cards with similar images, and sees movement because each of the presentations on the screen is slightly different, but the eye perceives that as movement, as I think your Honour ‑ ‑ ‑

HAYNE J:   Hence the reference to it being 50 hertz, is it not?

MR IRELAND:   That is right.  So that, technically, in television there really is not a single image that is perceptible.  That is why the thesis of the Full Court runs into trouble when they say, “Well, at least a perceptible group of those images.”  Why one has the parameter of that selection is never explained.  Your Honours, that is our primary point here.

HAYNE J:   Then that is the negative point, it is not a single image, I understand that, but there is a positive lurking around there somewhere, Mr Ireland.

MR IRELAND:   There is, and what are the candidates?  I think his Honour Justice Conti used the phrase “the feasible candidates”.  We put up two propositions.  One was historic.  Your Honours may be old enough – I am – to remember that the television broadcast used to start with a man throwing a boomerang at the beginning of the day and end with a kangaroo pulling down a blind at the end.

HAYNE J:   It ended with the National Anthem, thank you, Mr Ireland.

KIRBY J:   It ended with “God Save the Queen”.

MR IRELAND:   I did not think your Honour would remember that.  I must have been on Channel 7.  But, anyway, there was a beginning and end of the television day.  There was a beginning and an end of the television day.  That was the day’s broadcast, and when one reads Gregory, which is the English precursor to the 1956 Act, there is a lot of talk about the program of the BBC is all it was in those days.  The program was the daily program.  What changed was we were then allowed to enjoy repeated episodes of McHale’s Navy through the night, so that the television broadcast became continuous.

However, the television stations all packaged their programs when they advertised on a daily basis.  They issue schedules.  In fact, the issuing of schedules and the making of those schedules available to their competitors in advance is an imperative of the broadcasting legislation.  They have to give those schedules.  So it is part of their culture and it is derived from the way in which television began.

We also posited, and I will not develop it in detail, that the day has a certain rhythm about it with breakfast shows in the morning, the cartoons before the children go to school, afternoon programs for children, news, typically at 6 or 7 at night.  It has a certain circadian rhythm about it which still reflects a daily entity or structure for that program and the mere fact that there is no interruption for sleeping time when the television is off does not damage that view of the broadcaster’s presentation of his product.  The presentation of the product, whether it be an author who puts out a book or a publisher who puts out a magazine, is taken into account in a assessing the way in which the copyright protected work or subject matter should be viewed.  So our first proposition was that the day survives as the sensible entity of ‑ ‑ ‑

GUMMOW J:   That was pretty greedy.

MR IRELAND:   A greedy day?

GUMMOW J:   No, a greedy submission.

MR IRELAND:   Well, one with less of an appetite, your Honour, was ‑ ‑ ‑

HAYNE J:   If you do not ask, you do not get, Mr Ireland.

MR IRELAND:   The other one which we put, which his Honour the trial judge accepted, is that each program, because they are distinct – one moves from a two hour morning show at 7 o’clock in the morning, one has a half hour news broadcast, typically, at 5 or 6 or 7 at night, depending on which channel one is looking at, but that is a realistic view of ‑ ‑ ‑

GUMMOW J:   But what do the advertisers pay for, and how are their rates pitched?

MR IRELAND:   The advertisers pay for a presence in popular shows, I think, and their rates are fixed by reference to popularity.

HAYNE J:   That is two things, is it not?  Show, timeslot.

MR IRELAND:   Yes, I accept that.  That, your Honour, rather fortifies the program approach, in my submission.  There is another question that intrudes here and that is, in the case of commercial broadcasters where ‑ ‑ ‑

GUMMOW J:   Yes, but the program concept in the sense of a half hour or one hour show, or a two hour film, or whatever.

MR IRELAND:   Yes.  A movie might go for an hour and a half, two hours, sometimes.  The Grand Final goes for about seven hours, apparently.  That is coming up.  So the length of the presentation, if I can use a neutral word, we say does influence the decision about what is the protected broadcast.  The judge accepted, and that was his finding, that it was that entity.  The only quibble we had on that alternative submission with his Honour was that we thought the advertisements were really part of the presentation, particularly in commercial broadcasting.  They punctuate something, but they do not end it, and they are there as an intrinsic part.  The Broadcasting Act recognises that payment for advertising is intrinsic to the broadcast.

HAYNE J:   That runs into a difficulty with this definition of program, if you regard the Broadcasting Services Act concepts of program as ‑ ‑ ‑

MR IRELAND:   Interchangeable.

HAYNE J:   Well, as bearing on the issue or as perhaps even defining, because “program” is defined alternatively:

(a)  matter the primary purpose of which is to entertain, to educate or to inform an audience; or

(b)  advertising or sponsorship matter –

MR IRELAND:   Yes.

HAYNE J:   How does one grapple with this?  Does one use Broadcasting Services Act concepts?  Why does one use it?  How does one use it?

MR IRELAND:   Your Honour, we are trying to get it this way.  I have not taken your Honours specifically to this, but the definition of “broadcast”, which should be in the materials I have handed up at page 1, is to:

transmit by wireless telegraphy to the public.

You can only transmit to the public if you have a licence, or if you are a statutory authority like the ABC or SBS.  That takes you immediately, and naturally, to the Broadcasting Act, and that was our earlier point which I think your Honours had understood about the interconnection.

GUMMOW J:   When were the words “to the public” added, do you know?  They were not there in 1968.

MR IRELAND:   I do not know the answer to that, your Honour, I am sorry.

GUMMOW J:   Can that be checked?

MR IRELAND:   Yes, of course.  We say that, as it now stands, there is a fair interplay between the licensing requirements of the Broadcasting Act and the Copyright Act, so it is not off the point to have regard to the fact that this copyright can only inure for the benefit of a licensed broadcaster.  I have given your Honours a reference to section 91, which makes that clear, and 91(b) is our category. 

KIRBY J:   Now, where are you in the structure of your argument?  I am a bit lost. 

MR IRELAND:   I had taken your Honours, I hope, through the key provisions as to the subsistence of and ownership of copyright.  I have attempted to concentrate on the exclusive rights in section 87(a), (b) and (c), and to distinguish their nature.  I know your Honour wished to ‑ ‑ ‑

GUMMOW J:   Well, Justice Hely emphasised particularly the inclusion of “photograph” in 25(4), as supporting his reasoning.  One photograph.  What do you say about that? 

MR IRELAND:   What his Honour said – if I could just go to the paragraphs in Justice Hely’s judgment.  His Honour starts off by saying, in paragraph 41 – I do not know if your Honours are looking at this in the appeal book or in the report.  There is a problem which I have to try and sort out and that is that in the appeal books the paragraph numbers of the judgment have been chopped off, so if your Honours have it available, may I refer to the reported case in 118 FCR.  There are spare copies here if anyone lacks ‑ ‑ ‑

KIRBY J:   If you have spares ‑ ‑ ‑

MR IRELAND:   Could we hand them up, your Honour, I am sorry, if it is not inconvenient to look at the report?

KIRBY J:   No, that is how we will refer to it in our reasons.

MR IRELAND:   Yes.  I have handed up reproductions of the report in volume 118 FCR, I hope.  It starts off at paragraph 41, if I may, of the judgment, where his Honour acknowledges that an analysis:

of these questions required identification of the subject matter which constituted the relevant television broadcast.

That is, we would say, with great respect, correct.  His Honour then, in paragraphs 42 to 44, sets out the parties respective contentions, and I have been over that ground.  There is the single image contention of the respondent and our alternative contentions based on either a day or a particular program.  Then one gets to paragraph 46, Justice Hely regards the trial judge’s rejection of the submission that the:

broadcast copyright relates to each and every single visual image – 

his Honour records that, and Justice Conti’s conclusion:

that “the only feasible candidate” – 

that was the phrase I was referring to earlier – 

must be a television broadcaster’s programme, or segments – 

In paragraph 54, on the next page, Justice Hely seems to accept that the copyright in a cinematograph film under the Australian law requires that the protected subject matter “have the characteristics of a cinematograph film”, and that implies, necessarily, that the broadcast copyright then stands alone.  There is no suggestion that this single frame approach can work in relation to a film, and that is because section 25(4)(a) is directed only to broadcast and not to deal with any photograph aspect of a film.  Of course, one knows that conventionally a film is a series of photographs.

HAYNE J:   Just so, and the reference to “image” and the reference to “frame” in connection with television is, at best, analogical or metaphorical.

MR IRELAND:   I was going to say we would say it is really inapt.  Of course, nowadays, a cinematograph film involves the capture of the sounds and images in many technical ways:  videotape, CD‑ROM, digital television – the memory of a computer.  So there are lots of ways that can do it.

One remembers beach holidays in the 1950s when the super 8 movie camera produced a film and one waited weeks while it came back from the chemist, but there was the physical film which one could look at and it was a series of photographs; that was the way in which a film started.  The only difference between a photograph and the film was that the photograph conventionally was taken on negative stock whereas the film was taken on positive stock, and if one had slides, one had the same exactly material as in a film.  A single 35 millimetre slide, apart from maybe the film quality problems, is the very thing which is repetitively composing a 35 millimetre film that one saw at the cinema.

In paragraph 57 Justice Hely embarks upon his crucial consideration of the operation of section 25(4)(a).  His Honour acknowledges, at paragraph 59 – and this is significant, with respect – that:

Section 25(4)(a) does not directly play a part in the definition of the subject matter of a television broadcast.

It is, his Honour says, “a deeming provision” – and we respectfully disagree with that analysis – insofar as it treats a photograph as deemed to be a cinematograph film.  His Honour seems to elide that.  Normally a deeming provision makes what is not something, something that fits into the defined category.  Something that does not have the inherent qualities of the description is deemed to have them.  With respect, his Honour’s use of the word “deeming” in paragraph 60 of the judgment, first line, is not correct.

We also suggest, your Honour, that the effect of section 25(4)(a) is to allow one to regard a photograph possibly and, more likely, a series of photographs, if produced as a way of capturing a substantial part of a television broadcast, but that is a question of fact.

KIRBY J:   But where do you get – I see, you pick that up from 25.

GUMMOW J:   But why would the photograph itself be an original work, even with a tainted source?

MR IRELAND:   If one took a photograph of a television broadcast, it would be an original one.  It would be a Part III ‑ ‑ ‑

GUMMOW J:   Yes, that is what I am worried about.

MR IRELAND:   I suppose it is artistic work.

GUMMOW J:   Well, it is within the definition of artistic work, is it not?  Then there is a separate definition then of photograph, which marks it off from films, does it not?

MR IRELAND:   Indeed, your Honour, films and photographs – in the definition of “photograph” in section 10, it is in contradistinction to a film.  There is no intersecting set; they are discrete sets.  A film and a photograph are different creatures under this Act.

GUMMOW J:   But that being so, does that provide any explanation for the inclusion of both in 25(4)(a)?

MR IRELAND:   Only because it was a convenient way of allowing a photograph to count, rather artificially, for limited purposes as a film and to simplify the drafting in section 87.  That is as we read it.  But, as I have said before, Justice Hely’s approach allows section 25(4)(a) to drive the content of section 87 in a manner with which we respectfully quarrel.

KIRBY J:   The problem is that in the real world, first of all, 25(4)(a) uses the indefinite article “a”, “a photograph”, and in the real world it is difficult to imagine any film where a photograph, single one, can ever be a substantial part of the work ‑ ‑ ‑

MR IRELAND:   Or the broadcast.

KIRBY J:   ‑ ‑ ‑ of the broadcast.  It is hard to give a textual foundation for your argument.  I am sympathetic to your concept, but I just find it difficult as a matter of text to do it.

MR IRELAND:   Yes.  There is no doubt there is a tension in the sense between the text and it does not – what we have said, your Honour, in our submissions, and I would repeat it, is that this is the sort of problem that the Court dealt with in Project Blue Sky, where you have to establish a hierarchy in a statutory construction sometimes.

KIRBY J:   Is your suggestion that the use of “a photograph” in 25(4)(a) is a mistake?

MR IRELAND:   No, your Honour.  What I am saying is that it may almost never be the case that a television broadcast is substantially captured in the photograph, but it could happen and it is possible.  In Spelling Goldberg, for different reasons, in England, under different legislation, they held that a single photograph from a film called Starsky and Hutch, which became a poster in the defendant’s hands, infringed the copyright in the film.  It was a very long film.  It was a single photograph.  It must have been an important photograph, one gleans from the report, but it was capable, on that legislation, because of its importance, as a matter of fact, to be found to have been captured.

Now, of course, television broadcast themselves, we have seen, are of varying length, and that is part of the problem that I face in putting a universal time scale on what is a television broadcast.

HAYNE J:   If we remain at 4(a) for a moment and remain at photograph, the expression, “a photograph of any of the images comprised in the broadcast”, is an expression ‑ ‑ ‑

MR IRELAND:   That postulates a larger universe from which the photograph is a selection ‑ ‑ ‑

HAYNE J:   Just so.

MR IRELAND:    ‑ ‑ ‑ as we understand it, your Honour.  Can I just give your Honours that reference to Project Blue Sky (1998) 194 CLR 355 – this was a broadcasting case, actually – it is in our submissions, and the passage is at 381. This is in the joint judgment of your Honours Justices McHugh, Gummow, Kirby and Hayne, all present. Over the page, on page 382, these words:

Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.  Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”.  Only be determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

So we say it is an example of that.  We accept that there is a problem ‑ obviously, the Full Court felt the matter went the other way.  So there is a tension that has to be resolved between ‑ ‑ ‑

McHUGH ACJ:   There is more than a tension, is there not?  Every judge ‑ perhaps I should not say every judge, but most judges bring some baggage to any case.  In my case, the baggage I bring is a very strong belief in freedom of communication, freedom of speech, freedom of expression, and the result in this case is not one that makes me very happy.  But the text of the legislation seems to me so strong that I just do not see any way around it at the moment.

KIRBY J:   His Honour expresses exactly my view.  I start with the same proposition, that the text seems intractable, and when it is intractable you can be as sympathetic as you like, but you cannot defy the words of Parliament.

McHUGH ACJ:   See, 25(4)(a) operates on the second limb of 87(a), that is, to make a cinematograph film of the broadcast.  In that context, 25(4)(a) says:

a reference to a cinematograph film of a television broadcast shall be read as including a reference to a cinematograph film, or a photograph, of any of the visual images comprised in the broadcast ‑ 

If you go back to 101, the infringement section, does “any act comprised in the copyright” – 14 says that includes doing in relation to the subject matter a substantial part of the subject matter, but 87 tells you what is the act comprised in the copyright.  And by a combination of 25(4)(a) and the second limb of 87(a), you get the fact that it is an infringement of the owner of the films or the television broadcast copyright to do any act in relation to an image.  I just do not see how you can get around it.

MR IRELAND:   Section 87(b), of course, is untouched by all of that, so you have the interesting situation where the vision is a whole series of short and accumulating copyrights, but the sound that goes with them is not.

McHUGH ACJ:   I know, and I ‑ ‑ ‑

MR IRELAND:   The sound broadcast is completely different.  It can never be susceptible to being chopped up into these slivers.  That is incoherent, in our submission.

CALLINAN J:   Why could it not be chopped up into slivers?

MR IRELAND:   In terms of treating it as small intervals of the sound broadcast of a radio program, say, a morning radio program, as protected in a self‑contained way in short bursts, there is no mechanism equivalent to section 25(4)(a) that can lead to that result.  So you have a sound broadcast where a conventional approach – we would say, a program approach, at least – operates. 

CALLINAN J:   Why could you not record a sliver of the broadcast and then replay it? 

MR IRELAND:   You can record any amount you like, your Honour, it is the question of what is protected.  This argument protects every short moment of television in the vision, but in the sound broadcast, which is still a broadcast, there is no counterpart argument.  That is why that result is absurd, in our submission, and, to bear much more importantly on your Honour Justice McHugh’s question, because it ‑ ‑ ‑

GUMMOW J:   You would have to fix on sound as the counterpart of image, would you not?

MR IRELAND:   It is not there, your Honour.  The words are not there, with respect.

GUMMOW J:   That is the problem.

MR IRELAND:   One could make a concession to fair play, perhaps, in the case, by saying that because the definition of “television broadcast” speaks of the words:

sounds broadcast for reception along with those images –

you might just about say that where you are looking at a television broadcast, it is the sounds that go with the particular images that have been captured.  But what is the point, from a commercial point of view, protecting some incoherent three or four seconds of television which may tell you nothing?

McHUGH ACJ:   I know, and one could be fairly confident, I think, that this is not a result that the Parliament ever contemplated, but we have a piece of legislation here and it does seem, to use Justice Kirby’s term, intractable.

KIRBY J:   There are some decisions in the New South Wales Court of Appeal by Justice Mahoney, Birmingham and Tokyo Mart, which say that you can get to a little point in a statute and look at the whole statute and come to the view that Parliament has made a mistake, that you have to, as it were, read out a little part.  But the problem with 25(4)(a) is that ‑ ‑ ‑

MR IRELAND:   It is a big part.

KIRBY J:   It is a big part and it is a very particular and specific reference to “a photograph”.

MR IRELAND:   Your Honour, I have only said it five times and I will say it once more, it is telling you that a photograph or a combination can be a film.  That is all it is telling you.  It is telling you that that will do because photographs were not protected.  They were protected, prior to this legislation, in a different way.  They were what we would now call Part III subject matter.

McHUGH ACJ:   We know, as a matter of history, do we not, that at least one object of 25(4)(a) was to prohibit people taking photographs of what was appearing on the television.

MR IRELAND:   What Spicer suggests the purpose was in the English legislation which Spicer endorsed – and the question arises as to whether it was implemented – was that the way the English treated the provision that allowed a photograph to count as an infringement of the broadcast was drafted in such a way that if there were not consecutive images which, of course, is – because of the technicalities we have discussed, the idea of images or consecutive images is a difficult one, in any event – but if they were not consecutive then a photograph of non‑consecutive images would not count as a film of the broadcast.

McHUGH ACJ:   It is common enough today to see in the print media, a photograph of a person, for example, which has obviously been photographed off a television film?

MR IRELAND:   Yes.

KIRBY J:   And, of course, television images now appear on the Internet as well.

MR IRELAND:   They do.

KIRBY J:   So we have to move with the times, if we can, but ‑ ‑ ‑

MR IRELAND:   Certainly, your Honour, but ‑ ‑ ‑

KIRBY J:   In the end, a judge’s duty is to – as this Court has said many times – the purpose of Parliament as expressed in its language.

GUMMOW J:   The real question is whether this is a contrary intention, sufficiently manifested to displace section 14.  That is the question.

MR IRELAND:   Yes, and that is what Justice Hely said in the end there was.

GUMMOW J:   That is the question.

MR IRELAND:   I have not concentrated yet on Justice Finkelstein.

GUMMOW J:   It is not necessarily a Blue Sky Case because the Act itself provides some starting point ‑ ‑ ‑

MR IRELAND:   A mechanism for it to yield.

GUMMOW J:   Some indication of where you start, and you start with 14 unless there is a contrary intention – this is an infringement action.  So the question is what is it that displaces 14, which requires as a special dispensation a substantial part as distinct from the whole of it.

MR IRELAND:   Section 14 is in favour of the copyright owner because it allows him to win when only part of his material has been taken.

McHUGH ACJ:   That is right.  I am not sure that it is really a matter of exclude a contrary intention, because you start with 101, “does . . . any act comprised in the copyright”, and then 14 expands 101 which says that it also includes the “doing of” something “in relation to a substantial part of the . . . subject matter”.  But in this particular case, given the way the Full Court has construed the relationship between 25(4) and 87(a), the copyright owner does not have to rely on 14.

MR IRELAND:   That is true.  That is what Justice Hely says.  You do not go there, but we say that it also involves the unstated proposition that you have not identified the subject matter of copyright at all.  You have not identified the television broadcast.

HAYNE J:   Can I back up a bit because I suspect that I am a furlong off the pace, and that is to do with the significance that we should attach to the reference in 25 to making a photograph.  That was never in play in this action, was it?

MR IRELAND:   No.

HAYNE J:   No one ever suggested that your client had taken a still photograph?

MR IRELAND:   No.

HAYNE J:   So what is the significance that we are attaching to 25(a) and its reference to making a photograph of any of the images comprised in?  Are we using it to identify the content of broadcast?  If not, what is the use that is being made of it?  What was the use that Justice Hely made of it?

MR IRELAND:   Justice Hely’s approach to the influence that section 25(4)(a) has upon section 87 is not well explained, with respect.  It is an atmospheric approach to construction.

HAYNE J:   So are you saying that the exclusive rights given by 87 are fourfold, namely make a cinematographic film of the broadcast images, make a photograph of any of the broadcast images, make a sound recording of the broadcast sounds or rebroadcast the sound - it may be an unduly abbreviated description of those four elements - because the key element of the definition, in all its elements ‑ ‑ ‑

MR IRELAND:   Is the television broadcast.

HAYNE J:    ‑ ‑ ‑is what is a television broadcast.

KIRBY J:   Yes, but I think you were a bit unkind to Justice Hely in talking about atmospheric interpretation.  Interpretation is not a mechanical function, and his Honour ‑ ‑ ‑

MR IRELAND:   I hope not, otherwise I would not be here, your Honour.

KIRBY J:   Exactly.  His Honour was really looking at the context of the whole Act which is which this Court has said you must do.

MR IRELAND:   Yes.

GUMMOW J:   I do not think he was.  I do not think he had regard to the purpose of the Act.

MR IRELAND:   Neither do I, if it matters.

KIRBY J:   When you do that you are getting down to high particularity.

McHUGH ACJ:   It may illustrate the power of the television lobbyists in this country at the relevant time.

MR IRELAND:   It has so far, your Honour, that is why we are here.

KIRBY J:   Power is exerted on the Parliament and if the Parliament has spoken, it is our duty to conform.

MR IRELAND:   Yes.  The other point is this, your Honour, the miracle of television is the submission on the other side, that above all else the miracle of television sustains this higher control.  We would suggest, your Honour, that because it is imperative that they send their signal generally to the public without restriction, that it is not a valuable right that they can assert more valuable about anyone else.  They seem to characterise it as the value they get for the price of putting it about generally.  But we would suggest that if this material is seen in every home in any event, it is hardly protectable at this second level to this austere degree.

KIRBY J:   That item on the Prime Minister, for example, singing, one would expect that that would be on every news program that night.  Does that happen or not?

MR IRELAND:   It did not happen in this case, I do not think.  It was picked up a week or so later in The Panel program when someone thought it was worth telling Australia about, again.

CALLINAN J:   You were scooped.

MR IRELAND:   That is fine, we are a secondary user.  All of this is about secondary use, your Honour, that is the point.  The scoop remains.  Mr Bannon or my clients will always maintain the scoop.

CALLINAN J:   You were scooped, so you pilfered it later.  You were scooped, so you pilfered it later.

KIRBY J:   That is a word that is ringing in my mind, “pilfer”, “pilfered”.

CALLINAN J:   You could have probably licensed it with a few hundred dollars, perhaps.

MR IRELAND:   I doubt it, your Honour.  It is the same with a film.  These notions of pilfering do not work when you have a regime with other copyrights.

CALLINAN J:   What Mr Bannon said about films and restricted audiences in cinemas was quite persuasive.  It made a clear distinction.

MR IRELAND:   I am talking about films that go over the television.

CALLINAN J:   I know, and he was talking about films generally, saying that you could justify the difference, so far as television films were concerned, by reference to the fact that other films are controlled and controllable by limiting admission or charging a fee for admission to a picture theatre, and that was a reason for extending a particular protection to television films.

MR IRELAND:   Your Honour, in the case of films which are shown publicly, in general release – I think that is what your Honour is – in a cinema ‑ ‑ ‑

CALLINAN J:   Yes.

MR IRELAND:   ‑ ‑ ‑ what is primarily prevented is someone taking a part of that film whilst it is unbroadcast and dealing with it.  Once it is broadcast, the question always arises in relation to the film copyright as to substantiality.  My point is simply that the broadcaster does not have to pass that test on the case against us on the other side, but it is the very same vision and sound ‑ ‑ ‑

KIRBY J:   In a sense, the pilfer metaphor may not really work because this is something that is out in the public domain.

MR IRELAND:   It is a bit hurtful.

KIRBY J:   It is hurtful, is it? 

MR IRELAND:   It hurts.

KIRBY J:   I am sorry, but that is Mr Bannon you have to take that up with.

GUMMOW J:   Well, it is conclusory really.

MR IRELAND:   Yes.  It depends what the answer to the case is.

GUMMOW J:   Yes.

MR IRELAND:   Can I just say this, on the definition there is a coherent distinction maintained in all of the Part IV copyrights between the definition which talks about television broadcast, cinematograph film or sound recording, and when one gets up to the part, including section 91 in the case of television broadcast, which confers the right where the notion of “a television broadcast” comes in, equally “a cinematograph film”, equally “a sound broadcast”, and the like. 

So our learned friends want to plug in the words of the definition without scrutinising what the subsistence requirements, relevantly, in section 91 require.  They just want to flow them through as if there was a technique called television broadcast which is protected.  It is not the technique of television broadcast that is protected; it is a television broadcast limited to, made in Australia, by a certain person.  It is not the technique itself.  The definition is telling more about the technique or the way in which the methodology works.  So it is not permissible to look only to the definition but, rather, one should look to the subsistence provisions.

GUMMOW J:   It is said against you that you do not offer, really, any boundary between one television broadcaster and another television broadcaster.

MR IRELAND:   And our answer to that ‑ ‑ ‑

GUMMOW J:   And the only possible boundary is ‑ ‑ ‑

MR IRELAND:   Presentation.

GUMMOW J:   A 24‑hour series of television broadcasts with a series of images.

MR IRELAND:   No.  No, the boundary that we succeeded on before the trial judge was the program boundary, slot I think it was called.  We succeeded on that because it was a natural boundary that the judge thought, and there is a lot in it, defining by the presenter of the material or the matter, that is here the broadcaster, how he advertises the next offering.  That is why in the paper you are told the news is on at 6 o’clock, the current affairs show is later.

GUMMOW J:   Or why the public is looking at it.

MR IRELAND:   At that time.  A selection.  And it is, as we sought to say earlier, that is something they have to put out as part of their licence, or we all have to put out ‑ ‑ ‑

McHUGH ACJ:   What is your answer to Mr Bannon’s O.J. Simpson illustration, five hour ‑ ‑ ‑

MR IRELAND:   I was coming to that.  I was saving that for last.  What he says is our theory is that if you take five hours of a television broadcast of an endearing trial and it goes six hours and you turn it off, that there never is a broadcast.  That overlooks the fact that the broadcaster does complete the broadcast.  So what you ultimately compare it with is what he does put off.  If the power fails and the broadcasting ended after five hours so that the film is not in its conception - sorry, the broadcast is not in its conception completed, then that becomes the broadcast.  But if the broadcast does go on for the sixth hour that is the benchmark against which a test - whatever has been taken, in his example the five hours.  Usually one would think the conclusion is self‑evident in that example.  So it is not part of our thesis that if we stop taping or stop rebroadcasting that no broadcast copyright arises.

The other thing I wanted to mention which sprang from something that his Honour Justice Callinan had said - there are precious images.  The Concorde crash was one example I think was given, and I suppose the Twin

Towers events.  Those were cinematograph film records and in the case of a cinematograph film it suffers again the analysis of - the copyright in that suffers the analysis of an issue of substantiality.  Originally those were home movies I think or videos that were taken by people in the right place at the right time.  The question of the taking of their copyright, the cinematograph film copyright, has to go through an issue of substantiality.  Why is it that the television rebroadcast of that does not.  It does not seem logical.

Finally, the last point we want to make is, my friend has made no answer to the question why it is that this scheme for television broadcasts is different from the scheme for sound broadcasts.  That is an incoherent result, as we would suggest.  Those are our submissions.

McHUGH ACJ:   Yes, thank you, Mr Ireland.  The Court will reserve its judgment in this matter and will adjourn until 10.15 am on Tuesday, 9 September in Canberra.

AT 3.22 PM THE MATTER WAS CONCLUDED