TCN Channel Nine v Network Ten - [2001] FCA 108

FEDERAL COURT OF AUSTRALIA
TCN CHANNEL NINE v NETWORK TEN [2001] FCA 108
COPYRIGHT – television broadcasting – two competing television stations – re-broadcasting by one station of excerpts of television programmes recently broadcast by the other – whether in so doing re-broadcaster infringed original broadcaster’s television broadcast copyrights by taking a “substantial part” of latter’s original television broadcasts – meaning of “substantial part” relating to television broadcasts – whether “substantial part” to be measured by reference to whole of any one or more single visual images broadcast by television station, or to whole of television station’s daily or weekly emitted television signal or any other period of signal, or to whole of television station’s individual programmes or any segments of programmes - extent to which criteria for measurement affected by quality of substantial part taken or whether measurement confined to quantity of substantial part taken – whether re-broadcasting station’s objects or purpose in re-broadcasting excerpts of competing television station’s programmes relevant to issue as to “substantial part” taken – difference between purpose or object of satire in contrast to parody or burlesque material in taking – whether defence of fair dealing for purpose of criticism or review open in circumstances of re-broadcasting – whether defence of fair dealing for purpose of reporting news open in any circumstances of re-broadcasting – whether in either fair dealing situation sufficient acknowledgment was made of source of what was re-broadcast – legitimacy of recourse to reports to United Kingdom and Australian Parliaments concerning what was their proposed new copyright legislation.
Copyright Act 1968 (Cth) ss 10(1) (as to definitions), 14(1)(a), 22(4), 25(4), 41, 42, 85-88, 89-91, 92(1), 95, 100A, 101, 103A, 103B(1).
Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 27 IPR 133.
AGL Sydney Ltd v Shortland County Council (1989) 17 IPR 99.
Ainsworth Nominees Pty Ltd v Andclar Pty Ltd (1988) 12 IPR 551.
Autodesk Inc v Dyason (No. 2) (1992) 176 CLR 300.
Beloff v Pressdram Ltd [1973] 1 All ER 241
British Broadcasting Corporation v British Sky Broadcasting Ltd (1991) 21 IPR 503
Bromwell v Halcombe (1836) 3 My & Cr 737.
CBS Records Australia Ltd v Telmark Teleproducts (Aust) Pty Ltd (1987) 9 IPR 440.
Chappell & Co Ltd v DC Thompson & Co Ltd [1928-1935] MacG Cop Cas 467.
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39
Compagnie Generale Des Establissements Michelin-Michelin & Cie v National Automobile Aerospace Transportation and General Workers Union (Federal Court of Canada, unreported, 19 December 1996 – Teitelbaum J).
Data Access Corporation v Powerflex Services Pty Ltd (1999) 166 ALR 228
De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99.
Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] Fleet Street Reports 121.
Fernald v Jay Lewis Productions Ltd [1975] FSR 499.
Glyn v Weston Feature Film Co [1916] 1 Ch 261.
Hawkes & Son…

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

Case: [2001] FCA 108
Decision Date: 20 FEBRUARY 2001

CaseChat Overview and Summary

TCN Channel Nine commenced proceedings against Network Ten, alleging breaches of television broadcast copyright under the Copyright Act 1968 (Cth). The Applicants claimed that Network Ten had re-broadcast TCN Channel Nine's television broadcasts and had made a cinematograph film of these broadcasts without permission. The dispute was heard by the Federal Court of Australia, which was required to determine the validity of the Applicants' claims.

The court had to consider whether Network Ten's actions constituted a breach of the Applicants' copyright in the television broadcasts. The court also had to determine whether Network Ten's actions were protected under any exceptions provided by the Copyright Act, such as the provisions for transitory or incidental inclusion. Furthermore, the court had to examine the nature of the cinematograph film and whether it constituted a copy of the broadcasts.

In its decision, the court dismissed the Applicants' cause of action for breach of television broadcast copyright by way of re-broadcasting. The court found that Network Ten's actions did not infringe on the Applicants' copyright as the broadcasts were not fixed in a material form. However, the court did not dismiss the Applicants' claim for breach of copyright by way of making a cinematograph film of the broadcasts. The court ordered the cause of action for this claim to be listed for mention on a later date. The court also directed the parties to make submissions on the costs of the proceedings to date.

The court's orders included dismissing the Applicants' claim for breach of copyright by way of re-broadcasting, directing the Applicants' claim for breach of copyright by way of making a cinematograph film to be listed for mention, and requiring the parties to submit on 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 re-broadcasting pursuant to s 87(c) of the Copyright Act 1968 (Cth) (as amended) be dismissed.

2. The cause of action of the Applicants for breach of television broadcast copyright by way of making a cinematograph film of the subject television broadcasts, or a copy of such a film, be listed for mention on a date to be fixed.

3. The parties to make submissions as to orders as to the costs of the proceedings to date.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CONTI J

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Ratio Decidendi

Legal Principle Established

Established by: CONTI J

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