TCN Channel Nine v Network Ten

Case [2001] FCA 841

FEDERAL COURT OF AUSTRALIA

TCN CHANNEL NINE v NETWORK TEN [2001] FCA 841

COPYRIGHT – television broadcasting – two competing television stations – making by one station of cinematograph films of visual images of excerpts from the television programmes of the other, after earlier making cinematograph film of the whole or more substantial segments of such programmes for library storage – such cinematograph filming taking the form of video taping – having earlier failed to make out case for breach of s 87(c) of Copyright Act 1968 (Cth), whether contravention nevertheless occurred of s 87(a) – whether for purposes of s 87(a), television broadcast copyright extended to each individual visual image – whether a substantial part of the subject matter of copyright taken – whether a single visual image was the subject matter of copyright – alternatively breach authorised by implied industry license to make such video taping.

Copyright Act 1968 (Cth) ss 10(1), 14(1)(a), 22(5), 25(4), 31, 79, 83(b), 85, 87(a), 87(b), 87(c), 101(1), 101(4), 184(1) and 248U(1)

Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 applied
Banier v News Group Newspapers Limited [1997] FSR 812 applied
Brunton v Acting Commissioner of Stamp Duties [1913] AC 747 (PC) applied
Pro Sieben Media AG v Carlton UK Television Ltd [1999] 1 WLR 605 referred to
Spelling Goldberg Productions Inc v BPC Publishing Ltd [1981] RPC 283 considered
TCN Channel Nine Pty Limited & Ors v Network Ten Pty Limited [2001] FCA 108 applied
Walter v Steinkopff [1892] 3 Ch 489 applied

Copinger and Skone James on Copyright (14th ed, 1999) p 321
Pearce and Geddes Statutory Interpretation in Australia (4th ed, 1996) pp 40-41

TCN CHANNEL NINE PTY LIMITED, QUEENSLAND TELEVISION LIMITED & GENERAL TELEVISION CORPORATION PTY LIMITED v NETWORK TEN PTY LIMITED

CONTI J
SYDNEY
4 JULY 2001


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 105 OF 2000

BETWEEN:

TCN CHANNEL NINE PTY LIMITED
FIRST APPLICANT

QUEENSLAND TELEVISION LIMITED
SECOND APPLICANT

GENERAL TELEVISION CORPORATION PTY LIMITED
THIRD APPLICANT

AND:

NETWORK TEN PTY LIMITED
RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

4 JULY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The cause of action of the Applicants for breach of television broadcast copyright by way of making cinematograph film of the subject television broadcast pursuant to s 87(a) of the Copyright Act 1968 (Cth) (as amended) be dismissed.

2.The parties to make submissions as to orders as to costs of the proceedings subsequent to 20 February 2001.

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

N 105 OF 2000

BETWEEN:

TCN CHANNEL NINE PTY LIMITED
FIRST APPLICANT

QUEENSLAND TELEVISION LIMITED
SECOND APPLICANT

GENERAL TELEVISION CORPORATION PTY LIMITED
THIRD APPLICANT

AND:

NETWORK TEN PTY LIMITED
RESPONDENT

JUDGE:

CONTI J

DATE:

4 JULY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction

  1. These Reasons for Judgment should be read in the context…

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AGLC
TCN Channel Nine v Network Ten [2001] FCA 841
Case
[2001] FCA 841
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, TCN Channel Nine brought an action against Network Ten, alleging infringement of copyright in television broadcasts through the creation of cinematograph films. The dispute centred on whether Network Ten's actions constituted a breach of copyright under section 87(a) of the Copyright Act 1968 (Cth). The Court was required to determine the scope of protection afforded to television broadcasts under the Act and whether the making of cinematograph films constituted an infringement of that copyright.

The primary legal issue was whether the making of cinematograph films from television broadcasts constituted an infringement of copyright under the Act. The Court examined the provisions of section 87(a), which grants exclusive rights to the owner of copyright in a broadcast to make a cinematograph film of the broadcast. The Court considered whether the act of making such films without the consent of the copyright owner constituted a breach of this exclusive right. The Court also had to address whether there were any exceptions or limitations to this right that might apply in the circumstances of this case.

The Court found that the making of cinematograph films from television broadcasts did not constitute an infringement of copyright under section 87(a) of the Act. The Court held that the provision was concerned with the communication of the broadcast to the public, and not the subsequent recording or reproduction of the broadcast. Therefore, the act of making films from broadcasts did not infringe upon the copyright owner's exclusive right. Consequently, the Court dismissed the cause of action for breach of copyright. The Court further directed the parties to make submissions regarding the costs of the proceedings.

Orders

Orders of the court

1. The cause of action of the Applicants for breach of television broadcast copyright by way of making cinematograph film of the subject television broadcast pursuant to s 87(a) of the Copyright Act 1968 (Cth) (as amended) be dismissed.

2. The parties to make submissions as to orders as to costs of the proceedings subsequent to 20 February 2001.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CONTI J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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