TCN Channel Nine v Network Ten
[2001] FCA 108
•20 FEBRUARY 2001
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 (London) Ltd v Paramount Film Service Ltd [1934] 1 Ch 593.
Hyde Park Residence Ltd v Yelland [2000] 3 WLR 215.
Hubbard v Vosper [1972] 2 QB 84
Johnson v Bernard Jones Publications Ltd [1938] 1 Ch 599
Joy Music Ltd v Sunday Pictorial Newspapers(1920)Ltd [1960] 1 All ER 703.
Kipling v Genatosan Ltd [1917-1923] MacG Cop Cas 203
Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465.
Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 65 FCR 399.
Nationwide News Pty Ltd v Copyright Agency Ltd (1995) 55 FCR 271
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85.
Newspaper Licensing Agency Limited v Marks & Spencer Plc [2000] 3 WLR 1256; 48 IPR 229
Nine Network Australia Pty Ltd v Australian Broadcasting Corporation [1999] FCA 1864.
Pro Sieben Media AG v Carlton UK Television Ltd [1999] 1 WLR 605.
Rees v Melville [1911-1916] MacG Cop Cas 168.
Schott Musik International GMBH & Co v Colossal Records of Australia Pty Ltd (1997) 75 FCR 321.
Spelling Goldberg Productions Inc v BPC Publishing Ltd [1981] RPC 283
Time Warner Entertainment Co Ltd v Channel 4 Television Corporation PLC (1993) 28 IPR 459.
Union Features Syndicate Inc v Star Newspapers Pty Ltd (unreported, Supreme Court of NSW, proceedings 2637 of 1977).
Universal Press Pty Ltd v Provest Ltd (1989) 87 ALR 497.
University of London Pres Ltd v University Tutorial Press Ltd [1916] 2 Ch 601.
University of New South Wales v Moorhouse (1975) 133 CLR 1.
Wainright Securities Inc v Wall Street Transcript Corp (418 F Sup 620) (SDNY 1976) (on appeal 558F 2d 91 (2nd Cir 1977)).TCN CHANNEL NINE PTY LIMITED, QUEENSLAND TELEVISION LIMITED & GENERAL TELEVISION CORPORATION PTY LIMITED v NETWORK TEN PTY LIMITED
CONTI J
SYDNEY
20 FEBRUARY 2001
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 105 OF 2000
BETWEEN:
TCN CHANNEL NINE PTY LIMITED
FIRST APPLICANTQUEENSLAND TELEVISION LIMITED
SECOND APPLICANTGENERAL TELEVISION CORPORATION PTY LIMITED
THIRD APPLICANTAND:
NETWORK TEN PTY LIMITED
RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
20 FEBRUARY 2001
WHERE MADE:
SYDNEY
INDEX OF JUDGMENT
Page Paragraphs Headings 1 1 to 3 Introduction 5 4 to 7 The legislative scheme for infringement of television broadcast copyright 8 8 to 11 The issues arising 11 12 to 23 Substantiality – the doctrinal development prior to and including the period of time during which television copyright has subsisted 30 24 to 31 Nine’s submissions on substantiality 41 32 to 40 Ten’s submissions on substantiality 46 41 to 46 Conclusion on the statutory meaning of “a substantial part” of a television broadcast 53 47 to 53 Authorities relating to fair dealing for the purpose of criticism or review and for the purpose of reporting news 59 54 Sufficient acknowledgment 59 55 to 61 Ten’s submissions upon fair dealing defences 63 62 to 65 Nine’s submissions upon fair dealing defences 66 66 Conclusion on fair dealing principles emerging from authorities 67 67 to 70 Conclusions on substantiality issues applicable to the subject programmes 73 71 to 73 Conclusions on fair dealing issues in relation to the subject programmes
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 105 OF 2000
BETWEEN:
TCN CHANNEL NINE PTY LIMITED
FIRST APPLICANTQUEENSLAND TELEVISION LIMITED
SECOND APPLICANTGENERAL TELEVISION CORPORATION PTY LIMITED
THIRD APPLICANTAND:
NETWORK TEN PTY LIMITED
RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
20 FEBRUARY 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 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.
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 APPLICANTQUEENSLAND TELEVISION LIMITED
SECOND APPLICANTGENERAL TELEVISION CORPORATION PTY LIMITED
THIRD APPLICANTAND:
NETWORK TEN PTY LIMITED
RESPONDENT
JUDGE:
CONTI J
DATE:
20 FEBRUARY 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
These proceedings were commenced by TCN Channel Nine Pty Limited and two Nine related companies (each included in the description “Nine”) against Network Ten Pty Limited (“Ten”) by Statement of Claim filed on 9 February 2000, which sought declaratory and injunctive relief and damages for infringement of television broadcast copyright by way of re-broadcasting in contravention of s 87(c) of the Copyright Act 1968 (Cth) (“the Act” or “the Australian Act”). Both Nine and Ten are leading commercial television stations in Australia. By the time of commencement of the hearing on 13 November 2000, Nine was seeking by Further Amended Statement of Claim additional damages relating to further re-broadcasting infringements alleged to have occurred after service of the original Statement of Claim. All infringements were said to have been constituted by Ten’s alleged re-broadcasting, in Ten’s Wednesday evening television program called “The Panel”, of excerpts from episodes of certain Nine television programs broadcast over the period from 10 August 1999 to 28 June 2000, being excerpts claimed by Nine to constitute “substantial parts” of such Nine programs within s 14(1)(a) of the Act. For convenience I will refer to the Further Amended Statement of Claim as “the S/C”.
The Panel program was first broadcast in early 1998. During that calendar year a total of 42 weekly episodes of The Panel were produced and broadcast, and during 1999 the same number of weekly episodes of The Panel were produced and broadcast. By November 2000 when the hearing of the proceedings took place, a further 36 weekly episodes had been produced. Since mid 1998, The Panel has been publicly claimed by Ten to have consistently been the highest rating program in the 16 to 39 years of age demographic produced on television in Australia. Its programs are planned and designed to provide elements of current affairs, news, comedy and so-called “chat”. It has been described as a current affairs program that seeks to be entertaining and unscripted. Each episode is broadcast on Wednesday evening for 60 to 80 minutes commencing at 9.30pm. The programs feature a regular panel of about four regular panelists, who engage in what presents to television viewers as unrehearsed dialogue undertaken before a well attended studio audience. One or two guests of prominence in, for instance, sport are usually invited to participate with the regular panelists in the program for each evening. The preparatory work and procedures implemented for the production of each weekly episode for The Panel may be summarised as follows: program designers and regular panelists meet together on the Tuesday preceding the pending Wednesday night’s broadcast for the purpose of identifying recent events and any “breaking stories” emerging therefrom, and to identify prospective Panel guests currently and prominently involved in, for instance, politics, film or drama production, sport or music, and also to consider the use of recent television footage of prospective utility for the next program. Such planning, review and selection process might continue until as late as 8.30pm or 8.45pm on Wednesday evenings, the program episodes going to air as above stated on Wednesday evenings at 9.30pm. Media source footage or other media material selected for prospective entertaining comment by The Panel’s attendees have included footage of recent television programs produced by each of the Australian major television stations, that is to say, not just the Applicants’ Channel 9 but also Channels 2, 7 and SBS, and the Respondent’s Channel 10 (though in the latter case to a much less extent than in the case particularly of Channel 9 and 7), and in addition by pay television channels and film videos (Exhibit R3). Some promotional descriptions of the characteristics of The Panel programs or episodes, which have been all produced for Ten by its contracted production team known as “Working Dog”, have included the following:
“our light entertainment stable”
“chuckle and jibe over the week’s events”
“the best homegrown laugh all week”
“produces the best one-liners”
“though once deemed pretentious by some reviewers, it is impossible to imagine anyone else being able to make a round table chat equally successful”
“musing irreverently over the topical issues of the week”.The Executive Producer of The Panel, Mr Hirsh, rejected the suggestion that The Panel was only a comedy show and asserted that the programs produced for The Panel were “not necessarily entertainment”. The Channel Nine footage excerpts that I have viewed, being those produced in the immediate context of the re-broadcasting complained of, were for the most part punctuated with humour and laughter on the part of the Panel members and their guest(s), though there were some serious discussions undertaken as well. Mr Hirsh accepted that television audience ratings were of concern to him, as was effective competition by the Panel with commercial television stations such as Channels Nine and Seven.
The Nine program titles the subject of the television broadcast copyright infringements alleged by Nine are set out below in column 1, together with the dates of broadcast by Nine in column 2, and further set out below in column 3 are the dates of the re-broadcasts by Ten of excerpts from such corresponding Nine programs:
Program Title Date of Broadcast by Nine
(Chronological Sequence)
Date of Re-Broadcast by Ten of Excerpts from Nine Broadcast
“The Today Show” 10 August 1999 11 August 1999 “Midday” 26 August 1999 9 September 1999 “Wide World of Sports” 26 September 1999 29 September 1999 “A Current Affair” 19 October 1999 20 October 1999 “Australia’s Most Wanted” 11 October 1999 13 October 1999 “Pick Your Face” 20 August 1999 1 September 1999 “Crocodile Hunter” 21 August 1999 25 August 1999 “Days of Our Lives” 19 August 1999 26 August 1999 “Days of Our Lives” 20 August 1999 26 August 1999 “Simply the Best” 19 October 1999 20 October 1999 “The Inaugural Allan Border Medal Dinner” 31 January 2000 8 March 2000 “Sunday” 19 March 2000 29 March 2000 “The 72nd Academy Awards 27 March 2000 29 March 2000 “Sale of the New Century” 4 April 2000 5 April 2000 “The Today Show” 4 April 2000 5 April 2000 “The Today Show” 5 May 2000 10 May 2000 “Nightline” 15 May 2000 24 May 2000 “Newsbreak” 22 May 2000 24 May 2000 “Who Wants to be a Millionaire” 29 May 2000 7 June 2000 “The Today Show” 28 June 2000 28 June 2000 It may be noted that fourteen of the re-broadcasts occurred within one week of the Nine broadcasts to which they respectively referred.
It is convenient to adopt in these Reasons for Judgment the S/C descriptions of such Nine excerpts so re-broadcast by Ten as the “Panel Segments”.
The legislative scheme for infringement of television broadcast copyright
Nine’s case as pleaded in the S/C was to the effect that each of the Panel Segments constituted the re-broadcast by Ten without the license of Nine of a substantial part of each of such Nine television programs or episodes, and thus an infringement of Nine’s copyright in such television broadcasts, the expression “substantial part” carrying the critical statutory connotation referred to in s 14(1)(a) of the Act reproduced in [8] below. Division 6 of Part IV of the Copyright Act 1968 (Cth) governs such cause of action and is headed “Infringement of copyright in subject-matter other than works”. The expression “work” is defined by s 10(1) of the Act to mean “a literary, dramatic, musical or artistic work”, the copyright in relation thereto being governed by Part III of the Act. Copyright in “subject matter other than works” comprises “television broadcasts”, “sound broadcasts”, “sound recordings”, “cinematograph films” and “published edition of literary, dramatic, musical or artistic works”, and is governed by Part IV of the Act, and the same is in addition to and independent of any copyright in the literary dramatic, musical or artistic work from which such subject matters may have been derived (see s 113 of the Act). A distinguishing feature of the Part III “works” is the subsistence of originality in the expression of the same, and no pre-condition of originality is required for qualification as Part IV “subject matters”. Such pre-condition of originality was the requirement of the common law of copyright which preceded the first British Copyright Act of 1911, being legislation which was wholly adopted by way of schedule to the first Australian Copyright Act of 1912.
By s 101 of Division 6 of Part IV, it is provided, so far as is material, as follows:
“101 Infringement by doing acts comprised in copyright
(1)Subject to this Act, a copyright subsisting by virtue of this Part is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorises the doing in Australia of, any act comprised in the copyright.
(2)The next two succeeding sections do not affect the generality of the last preceding subsection.
…
(4)Subsection (1) applies in relation to an act done in relation to a television broadcast or a sound broadcast whether the act is done by the reception of the broadcast or by making use of any article or thing in which the visual images and sounds comprised in the broadcast have been embodied.”
The expressions “television broadcast” and “sound broadcast” are respectively defined by s 10(1) of the Act as follows:
“ ‘television broadcast’ means visual images broadcast by way of television, together with any sounds broadcast for reception along with those images.”
“ ‘sound broadcast’ means sounds broadcast otherwise than as part of a television broadcast.”
The expression “broadcast” is defined by s 10(1) to mean “transmit by wireless telegraphy to the public”, and “wireless telegraphy” is defined by s 10(1) to mean “the emitting or receiving, otherwise than over a path that is provided by material substance, of electro-magnetic energy”. The identity of a television or sound broadcaster is to be ascertained in accordance with s 22(5) of the Act as follows:
“For the purposes of this Act, a television broadcast or sound broadcast shall… be deemed to have been made by the person by whom, at the time when, and from the place from which, the visual images or sounds constituting the broadcast, or both, as the case may be, were broadcast.”
Television broadcast copyright is attributable by s 91 as follows:
“91 Subject to this Act, a copyright subsists:
…
(b)in a television broadcast (other than a broadcast transmitted for a fee payable to the person who made the broadcast) made from a place in Australia under the authority of:
(i)a license allocated by the Australian Broadcasting Authority under the Broadcasting Services Act 1992;
…”
No issue arises of course as to the holding of such a license by Nine. Section 91(b)(i) should be read with s 99(b) as follows:
“99 Subject to Parts VII and X:
…
(b)a person who is or has been a holder of a license allocated by the Australian Broadcasting Authority under the Broadcasting Services Act 1992… is the owner of any copyright subsisting in a television broadcast… made by that person;
…”
The nature of copyright in television and sound broadcasts is defined in s 87 of the Act as follows:
“For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a television broadcast or sound broadcast, is the exclusive right:
(a)in the case of a television broadcast in so far as it consists of visual images – to make a cinematograph film of the broadcast, or a copy of such a film;
(b)in the case of a sound broadcast, or of a television broadcast in so far as it consists of sounds – to make a sound recording of the broadcast, or a copy of such a sound recording; and
(c)in the case of a television broadcast or of a sound broadcast – to re-broadcast it.”
The subject proceedings have been conducted before me solely on the footing of infringement within s 87(c) above, that is to say, breach of copyright by way of re-broadcasting; but Nine foreshadowed an additional or alternative cause of action for infringement based upon s 87(a) of the Act in the circumstances described in [11] below. Section 95 stipulates a duration of copyright in a television broadcast or a sound broadcast of fifty years after the expiration of the calendar year in which the broadcast was made. The reference in s 87(a) above to making a “cinematograph film of the broadcast, or a copy of such film” picks up the following provisions of s 25(4) of the Act:
“In this Act
(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; and
(b)a reference to a copy of a cinematograph film of a television broadcast shall be read as including a reference to a copy of a cinematograph film, or a reproduction of a photograph, of any of those images.”
The issues arising
Nine’s complaints of re-broadcasting by Ten in breach of s 87(c) of the Act concern excerpts of varying duration from each of Nine’s programs or episodes listed in [3] above, each of which excerpts is said by Nine to comprise a “substantial part” of the subject matter of Nine’s television broadcast copyright arising under s 91(b) above. The statutory expression “substantial part”, as already mentioned at the commencement of [4] above, is contained in the critical definition provisions of s 14(1)(a) of the Act, which read as follows:
“14(1) In this Act, 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…”
The contention as to “substantial part” in relation to a television broadcast, which I have from time to time described by way of abbreviation in terms of “substantiality”, is the essential issue arising in Nine’s case in chief. Substantiality of part of a copyright work was a concept originally developed by the common law of copyright. It is the linchpin for determination of Nine’s contention that Ten has infringed its television broadcast copyrights pursuant to s 101 above by re-broadcasting such excerpts in contravention of s 87(c) above.
Ten contends that if the statutory notion of “substantial part” or substantiality is satisfied by Nine in the circumstances of its re-broadcasting of any of the Panel Segments, which Ten denies, then certain of such Panel Segments constituted “a fair dealing… for the purpose of criticism or review” within s 103A of the Act, the full text whereof reads as follows:
“103A Fair dealing for purpose of criticism or review
A fair dealing with an audio-visual item does not constitute an infringement of the copyright in the item or in any work or other audio-visual item included in the item if it is for the purpose of criticism or review, whether of the first-mentioned audio-visual item, another audio-visual item or a work, and a sufficient acknowledgment of the first-mentioned audio-visual item is made.”
By s 100A of the Act, an “audio-visual item” is defined to mean inter alia a television broadcast. Thus if Nine succeeds on the substantiality issue in chief, it is open to Ten to establish the defence of fair dealing for the purpose of criticism or review.
The above expression “sufficient acknowledgment” contained in s 103A is defined by s 10(1), but only in relation to a “work”. As already indicated in [4] above, “work” is defined by s 10(1) of the Act to mean “a literary, dramatic, musical or artistic work”, that is to say, a work of originality in expression recognised by the common law of copyright to which Part III of the Act applies. The definition makes no reference to an audio-visual item and thus for instance to a television broadcast or any other “subject matter” within Part IV. What therefore constitutes a “sufficient acknowledgment” in relation to a television broadcast must fall to be determined by the circumstances of each “fair dealing… for the purpose of criticism or review”.
Apart from the defence of fair dealing for the purpose of criticism or review, Ten contends that certain of the Panel Segments involved the reporting of news on the part of Ten by means of broadcasting, those Panel Segments having constituted “a fair dealing… for the purpose of, or [was] “associated with, the reporting of news” within s 103B(1)(b) of the Act, the text whereof reading as follows:
“103B(1)A fair dealing with an audio-visual item does not constitute an infringement of the copyright in the item or in any work or other audio-visual item included in the item if:
…
(b)it is for the purpose of, or is associated with, the reporting of news by means of broadcasting or in a cinematograph film.”
Such statutory expression “fair dealing” appearing in both ss 103A and 103B(1) is not defined by the Act. It will be noticed that the requirement for “a sufficient acknowledgment”, stipulated by s 103A, is absent from s 103B(1)(b). I am informed by Ten however that it is customary in the industry to attribute similar “sufficient acknowledgment” provisions to s 103(1)(b) as exist in s 103B(1)(a).
On the third day of the hearing, Nine sought to further amend the S/C (in the already amended form referred to in [1] above) by way of addition of the following paragraphs thereto:
“7A.Shortly prior to each such broadcast the Respondent made or authorised the making of a cinematograph film of the said footage from the Nine Programs for the purposes of each such broadcast.
8A.Each cinematograph film referred to in paragraph 7A constituted the making of a cinematograph film of a substantial part of each of the broadcasts from which the said footage was derived.
10A.Each making or authorising of the making of the cinematograph films referred to in paragraph 7A above constituted an infringement of copyright in the Nine Programs from which it was acquired.
11A.Unless restrained, the Respondent will continue to make or authorise the making of cinematograph films of substantial parts of the Nine Programs without the licence of the Applicants.”
These amendments were designed to take advantage of the provisions of s 87(a) extracted in [7] above, by way of an alternative attack to that already advanced under s 87(c). At the conclusion of the evidence on the following day, Ten’s opposition to the amendment was resolved by way of mutually agreed compromise, and the terms of such resolution became reflected in the document reproduced below (omitting formal parts):
“1.Grant leave to the Applicants to file in Court the Second Further Amended Statement of Claim which was handed up to the Court on 16 November 2000.
2.Order pursuant to Order 29 Rule 2 that the issues referred to in paragraphs 9A, 10A, and 11A of the Second Further Amended Statement of Claim be heard separately from and after the present hearing, if the need arises.
3.Reserve any questions of costs relating to the amendment.”
Consequently this judgment does not address the issues raised above in relation to s 87(1)(a).
Substantiality – the doctrinal development prior to and including the period of time during which television broadcast copyright has subsisted.
As foreshadowed in [8] above, the first issue of statutory construction arising in the proceedings concerns the operation of the s 14(1)(a) notion of “substantial part of the… subject matter” in the context of an alleged infringement of a television broadcast by way of re-broadcasting of the same. The other issues of statutory construction, concerning fair dealing for purposes of criticism or review or for purposes of or associated with the reporting of news, do not arise if Ten can establish the absence of any taking of a “substantial part” of Nine’s programs or episodes. As I have already mentioned, such notion of substantiality had its origins in the common law of copyright, prior to the introduction of the Copyright Act 1911 (UK), and was developed with emphasis more on the quality or value of what was taken by the alleged infringer from the protected work than on the quantity of what was taken. An example of the common law description of the concept is contained in the following passage in Bromwell v Halcombe (1836) 3 My & Cr 737 at 738 per Lord Cottenham:
“When it comes to a question of quantity, it must be very vague, One writer might take all the vital part of another’s book, though it might be but a small proportion of the book in quantity. It is not only quantity but value that is always looked at. It is useless to refer to any particular cases as to quantity.”
This passage is extracted in the Australian textbook “The Law of Intellectual Property, Copyright, Designs and Confidential Information” (2nd ed) LBC 1999 by Staniforth Ricketson, in the context of his discussion of substantiality, as a prelude to his discussion of a number of authorities referred to in [13-16] below. As the authorities thereafter cited by the author demonstrate, the expressions “value” or “quality” have been further judicially paraphrased in terms of the essentiality, vitality, or materiality of the part or parts of the works which have been copied or taken by the infringer. Virtually all of such authorities have related however to copyrights based upon the originality of works, so that the extent to which such principles may apply or extend to Part IV copyright subject matters, and in particular television broadcasts, presents considerable conceptual difficulty.
Thus by way of illustration in relation to the dramatic work of the complainant involved in Rees v Melville [1911-1916] MacG Cop Cas 168 (CA) at 174, the touchstone of substantiality was expressed in terms of the “dramatic value and importance” of the part taken, “… even although the portion [taken] might in fact be small and the actual language not copied”, and in relation to the musical work of the complainant involved in Hawkes & Son (London) Ltd v Paramount Film Service Ltd [1934] 1 Ch 593 (CA), a substantial part was said to have been represented by only a relatively few bars containing nevertheless the “essential air” of the work. Another illustration is the well-known case in England of Kipling v Genatosan Ltd [1917-1923] MacG Cop Cas 203 (Ch), where literary copyright was infringed by the use of four lines from a serious poem which constituted “the essential part of the crescendo” of Kipling’s “If”, such four lines having been used in an advertisement for the infringer’s medicinal preparation. More recently in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465, which related to betting coupons comprising sheets of paper listing forthcoming football matches, and which coupons were found to constitute the reproduction of a substantial part of the original literary work in the nature of tables or compilations, Lord Evershed referred, at 473, to the statutory notion of substantiality in terms of the “substantial significance of what is taken”, whilst Lord Pearce said at 481 “Whether a part is substantial must be decided by its quality rather than its quantity”. More recently, in the application of the principles as to substantiality enunciated in Ladbroke, the Court of Appeal in England, in Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] Fleet Street Reports 121 at 130, referred to an extract from Professor Cornish’s work Intellectual Property, 3rd ed, Sweet & Maxwell 1996 para 11-06 containing the imponderable observation “The answer in a particular case can only lie in the Tribunal’s sense of fairness”.
In more recent times in Australia, the statutory concept of substantiality has fallen for consideration in the context of computer programs, whose copyright protection falls nevertheless within Part III of the Act as a literary work. Judicial emphasis has been placed upon the extent of the “importance” of the taken portion of the complainant’s computer program in relation to such work as a whole: see Autodesk Inc v Dyason (No. 2) (1992) 176 CLR 300 at 305 (per Mason CJ), and the subsequent Full Federal Court decision in Accounting Systems 2000(Developments) Pty Ltd v CCH Australia Ltd (1993) 27 IPR 133 at 147 and 172 (per Lockhart and Gummow JJ). As to the former case reference, after first referring to Lord Pearce’s emphasis in Ladbroke upon quality rather than quantity, Mason CJ at 305 said as follows:
“As this statement makes clear, in determining whether the quality of what is taken makes it a ‘substantial part’ of the copyright work, it is important to inquire into the importance which the taken portion bears in relation to the work as a whole: is it an ‘essential’ or ‘material’ part of the work… However, in the context of copyright law, where emphasis is to be placed upon the ‘originality’ of the work’s expression, the essential or material features of a work should be ascertained by considering the originality of the part allegedly taken.”
Whilst the judgment of Mason CJ in Autodesk was in the minority, the same (inclusive of the passage just cited) has been subsequently preferred by all members of the High Court in the subsequent computer copyright case of Data Access Corporation v Powerflex Services Pty Limited (1999) 166 ALR 228 at [83-84], the area of disagreement by Gaudron J at [127-130] being unrelated to principles concerning substantiality.
The decision of the Full Federal Court in Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 65 FCR 399 however provides more assistance than perhaps any other in the context of the present proceedings, since the copyright works comprised so-called published edition of literary works within s 88 and thus Part IV of the Act, and where thus originality of expression is not involved in establishment of the copyright so protected. In determining whether the conduct of certain educational institutions in reproducing portions of newspapers and magazines infringed the publishers’ published edition copyright conferred by s 88 of the Act, by reason of such reproduction constituting a “substantial part” of such Part IV subject matter within s 14(1)(a), Sackville J (with whose judgment Jenkinson and Burchett JJ wholly agreed), introduced his appraisal of the issue of alleged breach at 418-419, under the sub-heading “the test of substantiality”, by referring to the passage in the speech of Lord Pearce in Ladbroke identified in [13] above, and to what was said by Mason CJ in Autodesk (see [14] above), in the following way:
“It has been said that the phrase “substantial part” as used in s 14(1) of the Act refers to the quality of what is taken, rather than the quantity: Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300 at 305, per Mason CJ. It has also been said that the reproduction of a part of a work which has no originality will not normally be a substantial part of the copyright and therefore will not be protected: Ladbroke v William Hill at 293; 481, per Lord Pearce. As Mason CJ observed, in determining whether the quality of what is taken makes it a substantial part of the work, the importance of what is taken should be considered in relation to the work as a whole and, for that purpose, it is appropriate to consider whether it is an “essential” or “material” part of the work: Autodesk (No. 2) at 305.”
Thereafter Sackville J applied the statutory notion of substantiality to Part IV copyright in the form of published edition of works upon the following principles:
“The general principle of copyright law is that copyright does not extend to ideas, but only to the expression of those ideas. But in the case of a published edition copyright, what is protected is not a particular collocation of words or musical notes, or a photographic representation. Published edition copyright protects the presentation embodied in the edition. This form of copyright, as the legislative history shows, protects such matters as typographical layout. However, it also protects other aspects of presentation, such as juxtaposition of text and photographs and use of headlines. In the present case, a considerable volume of evidence was adduced on the importance of layout and presentation to magazines and newspapers. In modern times, the work of typesetters is shared among subeditors, layout artists or designers and production editors. It is clear that layout is often extremely important in attracting readers to read a particular story or magazine. It is also clear that the choice of layout, type-size, headings and colour is a skilled operation.
Published edition copyright thus protects the product of skill, labour and judgment in presenting material in an edition. …
In relation to a published edition, the quality of what is taken must be assessed by reference to the interest protected by the copyright. That interest, as has been seen, is in protecting the presentation and layout of the edition, as distinct from the particular words or images published in the edition. The quantity of the material reproduced, assessed by reference to the whole of the published edition, is relevant in determining whether what has been taken is a substantial part of the edition. But since it is the quality of the material taken that is the key issue, the quantity is not the only, nor necessarily the principal, criterion.”
Subsequently at 420, his Honour explained the significance of what he encapsulated in the last paragraph above in terms of “the quality of what is taken…”. I extract such explanation below:
“Nor is there a case in which there has been a significant interference with the interest protected by published edition copyright. This is not a situation, for example, where a competing publisher has utilised a distinctive feature of the copyright holder’s layout or presentation for the purposes of a rival magazine or newspaper… The copying of the segment takes advantage of the publisher’s layout and presentation and does so in circumstances in which it can be inferred that harm will be caused to the publisher’s commercial interest in the whole of the published edition.
The copying undertaken in the present case was of discrete articles… There is no evidence as to when the copying took place… In these circumstances, it is difficult to conclude that there was any significant interference with the publisher’s commercial interest in the whole published edition.”
I interpose at this point to say that as will later appear, what the Full Federal Court here stated in relation to quality, and in particular the circumstance that “…what is taken must be assessed by reference to the interest protected by the copyright”, has been endorsed by the Court of Appeal in England (see in particular the judgment of Mance LJ in the Marks & Spencer litigation subsequently discussed in [18] below).
The judgment of Sackville J thereafter referred with approval to the following passage from Copinger and Skone James on Copyright (13th ed) Sweet & Maxwell 1994 p175:
“In deciding [the quality or importance of the part taken], regard must be had to the nature and objects of the selection made, the quantity and value of the materials used, and the degree to which the use may prejudice the sale, or diminish the profits, direct or indirect, or supersede the objects of the original work… In short, the question of substantiality is a matter of degree in each case and will be considered having regard to all the circumstances.”
Mr Ricketson’s commentary on Nationwide News, as contained in para 9.35 of his book first identified in this judgment in [12] above, is in the following terms:
“As Nationwide News indicates, a second relevant factor is the object or purpose which lies behind the taking, and the use which is made of the part taken. This is related to the statutory defences of fair dealing… but it should be noted that the latter are confined to specific purposes such as private study, criticism or review. In relation to issues of substantiality, a wider range of purposes may be taken into account. Thus, it seems that if the purpose of the copyist is the same as that of the author of the original, this may lead a court to hold that the part taken is substantial. This is particularly so where copyists are relieved of the necessity of using their own skill and labour, and are able to take a free ride on the efforts of the original author. In addition it seems that courts will readily reach the conclusion that a substantial part has been taken where this has been done… with an intention on the part of the copyist to take from the original work for the purpose of saving time and labour….”
In the context of the foregoing discussion of the object and purpose of the alleged infringer in taking part of the protected work or subject matter, Mr Ricketson’s textbook (see [12] above) thereafter refers in the said para 9.35 to Joy Music Ltd v Sunday Pictorial Newspapers(1920) Ltd [1960] 1 All ER 703, where the defendant had taken what might otherwise have been a substantial part of the plaintiff’s song, but had bestowed such mental labour upon what he had taken, and subjected it to such revision and alteration, as to produce an original work with a totally different purpose, namely a parody of the plaintiff’s song. Mr Ricketson concluded at this point of his discussion of the relevance of object or purpose to substantiality with the following observation: “However it should not be thought that parody represents a separate or distinct defence or justification for what otherwise might be an infringing use… Anglo-Australian courts have tended to play down the parodic intent of an allegedly infringing use, although it may tip the balance in a case where all other factors are equal.” In the course of the hearing, there occurred some discussion of the significance or otherwise of parody or burlesque in relation to the law of copyright, and reference was made to AGL Sydney Ltd v Shortland County Council (1989) 17 IPR 99, where Foster J found that the adaption by the Council of AGL’s original television advertisement extolling the virtue of gas as a home power source, being an adaption which substituted an advertising promotion for electricity as a home power source in a parodic manner, infringed AGL’s copyright as a literary and dramatic work within Part III of the Act. At 105 his Honour said as follows:
“[Counsel for the Respondent County Council] relies upon authorities which have been described as the parody cases… [however] a statement of principle which appears to have won general acceptance is that of Younger J in Glyn v Weston [1916] 1 Ch 261 at 268, namely: ‘that no infringement of the plaintiff’s rights takes place where a defendant has bestowed such mental labour upon what he has taken and has subjected it to such revision and alteration as to produce an original result’… as it is of the essence of parody that the work parodied must be evoked in the mind of the hearer or viewer to fulfil the purpose of the parodist, the question must necessarily remain whether an infringement of copyright has occurred as a result of a substantial taking from the parodied work. This question must necessarily arise from the application of the provisions of ss 14 and 31 of the Act. The statute grants no exemption, in terms, in the case of works of parody or burlesque.”
Such reference on his Honour’s part to s 14 of the Act is of course to the statutory notion of substantiality therein stipulated, which brings to the fore once again the factors of quality and quantity, nature and objects of the selection made, essentiality and materiality etc referred to in the passages cited from authority in [14-15] above. In taking account of AGL, one needs to keep in mind the material considerations leading to his Honour’s conclusion, such as “It is quite candidly acknowledged by the [Council] that it worked from the AGL advertisement in an attempt to develop a hard hitting answer to it”, and “In any event, I seriously doubt that the second Shortland advertisement could properly be regarded as parody of the AGL work and advertisement in so far as a parody is defined as ‘a humorous or satirical imitation of a serious piece of literature or writing’. Earlier the Supreme Court of New South Wales in United Features Syndicate Inc v Star Newspapers Pty Ltd, an unreported decision made in proceedings No. 2637 of 1977 which is noted by Mr Lahore’s Copyright Law in para 4.1.230, the foregoing approach in AGL was applied in circumstances where the parody of a cartoon strip, in which the original characters were reproduced in a different story with a different theme, was found nevertheless to have infringed copyright in a literary work by reason of the absence of such extent of revision and alteration as to have produced a result of originality.
It is appropriate that I should interpolate at this point to say something about the words “parody” and “burlesque”, and what I consider to be their distinctiveness of meaning from the word “satire”, and I do so in the particular context of my discussion of authorities in [16] above. The Macquarie Dictionary definitions of the three notions indicate that the essence of parody is imitation, consistently with the observation made in AGL as above extracted, and that burlesque is in the nature of vulgarising parody by way, for instance, of a vulgarising or debasing caricature, whereas satire is described as being a form of ironic, sarcastic, scornful, derisive or ridiculing criticism of vice, folly or abuses, but not by way of an imitation or take-off. Nevertheless that Dictionary’s attribution of “… satirical imitation” has caused me to research further into the true or essential meaning of satire. In the work of a highly respected Australian academic, Professor Margaret Rose, published by the Cambridge University Press in 1993 and titled “Parody: Ancient, Modern, and Post Modern, the author distinguishes between both the Aristotle originated word parody, and the conceptually similar Italian originated word burlesque, on the one hand, and the Latin originated word satire on the other hand. Such distinction referrable essentially to imitation, though sometimes blurred at the edges by every day usage, assists an understanding as why parody (and burlesque) will not avoid copyright infringement, since imitation is in the nature of copying, in contrast to satire which involves the drawing of a distinction between the satirist and the author, composer etc. The distinction is of importance for the purposes of this litigation, to the extent that Ten may rightly be said to have used Nine footage for mainly satirical purposes or purposes similarly to satire, and to have done so in way that made it obvious that what has been taken originated from Nine and not from Ten. I observe incidentally that Copinger, supra at paras 7-34 and 7.44 use parody and burlesque implicitly as carrying similar connotations, though at para 9.18, the authors include “satire” in the heading “Parody, burlesque and satire”, though without explicitly discussing satire otherwise than in note 92 thereto, where the following distinction is made, in my opinion correctly:
“In some cases a distinction has been drawn between cases where a work itself is parodied and cases of satire, where part of a work is used to provide a critique of individuals or institutions or society in general.”
And after listing those cases, the authors proceed as follows:
“The broad definition of criticism which has been adopted in the United Kingdom which allows the reviewer to look ‘behind’ a work…would seem to make it more likely that some cases of satire would also fall within the fair dealing defence” (the underlining is my emphasis).
Such para 9.18 of Copinger does however refer to parody as possibly relevant to fair dealing for purposes of criticism and review, which of course involves different considerations to those of substantiality.
After the commencement of the subject proceedings on 9 February 2000, the Court of Appeal in England handed down judgment in Newspaper Licensing Agency Ltd v Marks & Spencer PLC [2000] 3 WLR 1256; 48 IPR 229. This litigation, as in the case of Nationwide News, related to published edition copyright. Two members of the Court of Appeal (Peter Gibson LJ and Chadwick LJ) discussed Nationwide News predominantly by reference to the litigation at first instance (Nationwide News Pty Ltd v Copyright Agency Ltd (1995) 55 FCR 271) where Wilcox J rejected the submission that published edition copyright could be infringed by the reproduction of a single item in a newspaper or magazine. Ten’s written submissions cited the following passages from the leading judgment of Peter Gibson LJ at 1265, 1267; 235,237-8:
“[26]The reasoning of the Judge [the United kingdom judge at first instance] therefore was more directed to a qualitative rather than a quantitative test of what is a substantial part. However, the primary submissions of both Mr Silverleaf and Mr Garnett were that the test was quantitative, having regard to the fact that the copyright is typographical arrangement copyright which is not dependent on originality. I agree that that is the most important factor, though I would not exclude from relevance an assessment of substantiality based on considerations of other than a mere measurement of column inches, such as the impression which the copied part makes on the eye of the reader. This may in turn depend on matters such as the prominence of the part in the edition: see the observations of Sackville J in the Nationwide case 136 ALR 272, 292.
…
[37]I turn then to how I would answer the second issue, bearing in mind that the copyright with which we are concerned is typographical arrangement copyright and that this requires a comparison of the parts copied with the whole published edition and a primarily quantitative assessment coupled with a consideration of the impact on the reader.”
The judgment of Chadwick LJ was to similar effect, and I extract from the same below:
“(71)…If the true analysis is that the only relevant “published edition” is the newspaper or magazine from which the article or report has been taken, then the question is whether the copying of the typographical arrangement of the individual article or report is properly to be regarded as the copying of a substantial part of the typographical arrangement of the newspaper or magazine as a whole.
(72)For my part, I would regard the test of substantiality in that context as primarily, if not exclusively, quantitative. But whether the quantitative comparison is confined to column inches of space occupied, or includes a word or line count or some other assessment of visual impact, is a question on which I prefer to express no view. The difficulties which, as it seems to me, are inherent in applying the test of substantiality to a work which consists of typographical arrangement contribute to my view that parliament is unlikely to have intended that to be the applicable test in relation to the infringement of copyright in the typographical arrangement of a compilation of individual literary works. Be that as it may, it is sufficient if I express my agreement with the conclusion reached by Peter Gibson LJ on this issue. If substantiality is the test, then I agree that we have not been shown any cutting which can properly be regarded as a substantial part of the newspaper or magazine from which it was taken.” (at 1275-6; 245-6)
The judgment of Mance LJ adopted more closely the Full Federal Court’s approach in Nationwide News regarding the way in which the notion of substantiality is to be assessed in relation to published edition copyright. After first observing at paragraph (103) that “Like Peter Gibson LJ, I would conclude that a substantial part is not copied merely because the quantity copied is more than de minimis, and that the test under s 16(3)(a) is probably best paraphrased by asking whether copying took place to an extent ‘worthy of consideration for the purposes of the Act’…”, Mance LJ continued at 1284-5; 253-4 as follows:
“(104)Mr Garnett’s next submission was that the test must in the present context be purely quantitative. But lack of creativity does not mean a lack of all characteristics apart from volume…. The typographical arrangement of a published edition looks to the typographical characteristics of the entire edition, including… matters of layout and appearance. In this respect, the appellants suggested that guidance was again to be found in the decision of the Nationwide case (and Mance LJ thereafter cited the paragraph of the Full Court’s judgment commencing “In relation to a published edition…” extracted in [15] above).
(105)I would not myself endorse the reasoning in the Nationwide case if and to the extent that it is to be read as taking as a relevant test of substantiality whether the part copied was “an ‘essential’ or ‘material’ part of the work”: see at IPR 71; ALR 290, citing Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 305; 25 IPR 33. At least the first word may, as it seems to me, set the test too high. However, the Federal Court’s reasoning appears to me correctly to identify the sense in which the “quality” of the material copied should be considered. It is not the quality of the information, comment or other contents in any article that matters. Typographical arrangement copyright is concerned with presentation or appearance. What matters is the extent to which the typographical arrangement is reproduced, both in terms of volume and in terms of appearance.
…
(107)It is, in my view, relevant to go back to the purpose for which, or the mischief in the light of which, this type of copyright was introduced. What was in mind was the copying, or “pirating”, of publications by unscrupulous competitors. It is appropriate to have that in mind when considering the extent to which the appellants’ activities should be regarded as involving the copying of “any substantial part” of any published newspaper from which they copied articles. In no case, which we were shown, can it be said that the appellants’ copying reproduced anything that could be regarded as either resembling the newspaper concerned or having newspaper-like qualities. In some cases, it seems clear that, the copying was, if not trivial, then barely more than trivial. …As to the reproduction of articles involving larger chunks of text – rearranged though they commonly were when copied onto an A4 page – the appellants gained thereby commercial advantages for themselves, but they cannot in any realistic sense be said to have done so as competitors of the respondents. They did not create anything which could be regarded as resembling any, or in my view, any significant part of the relevant newspapers viewed as an entire publication. Moreover, any use that the appellants made of such newspapers’ typographical arrangement was at best incidental or very subsidiary to the appellants’ primary purpose, which was to communicate the information in the articles to their staff. In the circumstances I do not think that it is right to regard the appellants in the present context as having copied a substantial part of any of the newspapers involved. …”
All of the authorities to which reference has thus far been made, with the exception of Nationwide News and Marks & Spencer, have been concerned with literary, dramatic, musical or artistic material, and thus “works” within Part III of the Australian Act. The assistance to be derived from authorities referrable to Part III works is the gaining of an appreciation of the extent of modification or qualification required to be made in the application of the dichotomy of quality and quantity to Part IV “subject matters”, and in particular of course television broadcasts, if that dichotomy is to substantially survive in the light of the approach of Chadwick LJ in Marks & Spencer (see para 72 of his judgment extracted in [18] above). Nationwide News and Marks & Spencer both related to published edition, the copyright addressed by s 88 of Part IV of the Australian Act. I have not yet referred to the Part IV subject matter of cinematograph films which had initially, until the British Copyright Act 1911, enjoyed protection initially as a series of photographs and subsequently as literary or artistic works where possessing an original and personal character. Thereafter under that legislation, cinematograph film copyright gained additional statutory protection as dramatic or literary works, where an original character could be imputed: Copinger and Skone James on Copyright (14th ed), Sweet & Maxwell 1999, Vol 1 para 3-55-6. The now Part IV copyright subject matter of sound recordings first gained statutory protection under the 1911 Act as musical works, without the requirement for demonstration of originality “as such”: Copinger (14th ed), supra at para 3-105. The critical issue which must here be addressed is the manner in which, and the extent to which the historical notion of substantiality subsequently embodied in s 14(1)(a) of the Australian Act should accommodate the more recently recognised Part IV copyright relating to television broadcasts, in the light of the accommodation of that notion which has taken place in relation to other Part IV subject matters. Chapter 7 of Laddie and Prescott and Ms Vitoria The Modern Law of Copyright and Designs (2nd ed) Butterworths 1995 addresses “… the special sort of copying which protects the signals emitted by broadcasts and the items in a cable programme” (in para 7.1). The authors further develop this subject in para 7.3, after making the observation that “Television and sound broadcasts received no independent copyright protection under the pre-1956 law” as follows:
“Because, in many instances, at that time, sound or television broadcasts were transmitted live they were of an ephemeral nature and therefore could not be squeezed into one of the then existing categories of copyright subject matter, all of which required that the subject of copyright should be reduced to writing or some other tangible form.”
Thereafter the authors explain, without controversy, what is sought to be protected by the conferral of copyright in favour of television broadcasts:
“… it is the ‘message’ carried by the broadcast waves – the visual images, sound or other information… and not the waves as such which may be regarded as temporary packaging for use in transit…. But the ‘message’ carried by broadcast waves is nothing more nor less than what is encoded by the precursor signal used to modulate the carrier wave at the broadcasting station. It is submitted that to make sense of these matters one must have recourse to the rather metaphysical concept that the substance of the ‘work’ -what everyone is interested in sending or receiving – is the ‘message’, the wireless telegraphy waves are the outward accident thereof. Put in more practical terms, what is protected by broadcasting copyright are the visual images, sounds or other information but copyright cannot arise unless the author engages in the act of transmitting these by wireless telegraphy, this being a condition precedent to the acquisition of the right. (I interpolate here to refer again to the reference to “wireless telegraphy” in the s 10(1) definition of “broadcast” in the Australian Act extracted at [6] above). It is, however, a mistake to suppose that the visual images, sounds or other information enjoy broad protection in the same way as an artistic musical or literary work. For instance, in the case of sound broadcasting it is only the sounds actually heard in the broadcasting studio which are protected, not the underlying intellectual content and so on….”
The authors thereafter cite the decision of this court in CBS Records Australia Ltd v Telmark Teleproducts (Aust) Pty Ltd (1987) 9 IPR 440, where it was held that the copyright in a sound recording could not be infringed by the making of a ‘sound alike’ record, being a close imitation of a performance on an existing record, using alternative performers. The reason provided by the Court was that what was protected by this kind of copyright were the actual sounds as embodied in the recording, which actual sounds had not been taken by the alleged infringer. Bowen CJ said in this regard as follows:
“… [t]he section [referring thereby to s 87(b) extracted at [7] above] is speaking of the actual sounds broadcast being taken and not speaking of someone producing an imitation by the use of independent performers of broadcast sounds.”
The said authors of The Modern Law of Copyright and Designs continue in para 7.32 thereof in relation to broadcast copyright, still without controversy, as follows:
“One must bear firmly in mind that this type of work may be copyright even though it is wholly devoid of originality. The statutory monopoly arises even though the author expended no mental skill, labour or ingenuity in its preparation. In the case of copyright works of the traditional type, eg original literary works, originality is highly material to the question of infringement by altered copying… It is submitted that it is the actual visual images or sounds which are protected, and not some initiation or reproduction thereof produced by collateral means… The underlying creative content (eg the script or the music) may well be protected aliunde for instance, as an original literary or musical work. But this is a different thing, and involves questions of originality.”
However the following conclusion to the authors’ Chapter 7, contained in para 7.34, brings into focus the main area arising for present debate, in terms which Nine would adopt in favour of its case as to substantiality:
“Partial taking
7.34…the Act does stipulate that the copyright in a broadcast or cable programme may be infringed by the copying of a ‘substantial part’… How lengthy must an extract be before it counts as a substantial part for this purpose? Whilst no absolute standard can be laid down, the Act states that in relation to a film, television broadcast or cable programme, ‘copying’ includes making a photograph of the whole or any substantial part of any image forming part thereof. This strongly suggests that the taking of even a single frame of a film (or the equivalent amount of a TV broadcast) may be an infringement. Yet in an average feature film a single frame forms less than 0.001 per cent of the total. Sheer length, then, is unlikely to be conclusive. Perhaps a practical test is to enquire whether what is taken has any discernible market value. A poster would have. A short burst of sound engendered while ‘channel hopping’ on a receiver in a shop would not. It may be that anything which is not de minimis would be regarded as ‘substantial’.”
The foregoing view of the authors as to “partial taking” of a television broadcast copyright addresses s 17(4) of the British Copyright Designs and Patents Act 1988 (UK), which reads as follows:
“Copying in relation to a film, television broadcast or cable programme includes making a photograph of the whole or any substantial part of any image forming part of the film, broadcast or cable programme.”
Such statutory provision may be contrasted however with the provisions of s 101(4) of the Australian Act (see [5] above), which addresses breach of television broadcast copyright alone, and which, by its employment of the words “… the visual images and sounds comprised in the broadcast”, incorporates the notion of plurality of visual images, in contrast to the words “any image” of the above 1988 UK legislation. Such UK 1988 legislation relating inter alia to television broadcast copyright may similarly be contrasted with s 14(4) of the 1956 UK legislation, which is reproduced in [21(ii)] below. I will return later to the text of certain of both UK statutory provisions.
Each party has referred me to the content of materials extrinsic to United Kingdom and Australia legislation, in the form of reports of law reform bodies and second reading speeches, in support of submissions as to the construction of the relevant copyright statutory provisions enacted here and in the United Kingdom since the introduction of television broadcasting. As to the justification for so doing in relation to extrinsic material of Australian origin, see generally CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at [408]; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99 and 111-113 and Schott Musik International GMBH & Co v Colossal Records of Australia Pty Ltd (1997) 75 FCR 321 at 323-4 per Wilcox J, at 328-333 per Hill J and at 333-6 per Lindgren J. I would include within the general purview of those authorities the extrinsic use of United Kingdom extrinsic materials, by reason of the leading role adopted in the United Kingdom to copyright reform after the introduction of television broadcasting, which was largely adopted in Australia in circumstances which were similarly occurring in Australia, as will shortly be traced. Such content of extrinsic materials are extracted below, to the extent they have been cited to me in address:
(i)Prior to the enactment of the United Kingdom copyright legislation of 1956, the President of the Board of Trade presented to the Parliament in October 1952 the Report of the Copyright Committee chaired by Mr H.S. Gregory (“the Gregory Committee”), which contained the following:
“93. …
Further, it can no longer be assumed that the reproduction of visual effects must be preceded by photographs, and we are given to understand that even now it is possible to record on a magnetic tape a spectacle which can be reproduced visually as a television programme. Accordingly, in drafting provisions relating to records, cinematograph films and such matters, we consider that the wording adopted should have regard to the end-product (eg sound or visual representation) rather than to the means whereby these effects are produced.
…
116We now turn to the question whether a new right should be given to the broadcasting organisations in their own programme, additional to any copyright there may be in the individual items which go to make up those programmes, and we deal at this stage solely with a right to prevent other persons from copying the programme whether by way of again broadcasting a programme (in the event of there being more than one broadcasting authority in the future) or by way of recording such programmes for subsequent performance in some other way.
117On the question of copyright in the ordinary sense, the position of the B.B.C., as we see it, is not, in principle, very different from that of a gramophone company or a film company. It assembles its own programmes and transmits them at considerable cost and skill. When using copyright material it pays the copyright owner, and it seems to us nothing more than natural justice that it should be given the power to control any subsequent copying of these programmes by any means. It has been represented to us that the absence of such a right has already caused considerable embarrassment to the B.B.C. Apparently, indifferent reproductions both of sound and television programmes have been made, and sold to the public, to the detriment alike of the Corporation and of those taking part….
118There is one comparatively small matter relating to broadcasting to which we must refer. It is the practice of the BBC, and we believe of all broadcasting authorities, to make records of their programs, sometimes before the performance is broadcast, sometimes in the course of broadcasting, for subsequent use in repeat programmes. Where copyright material is broadcast, however, the making of such records would infringe the mechanical rights of composers or authors. We accept that a procedure of this kind is essential and we note that the Brussels convention (Article 11(b)) accepts that countries of the Berne Union may determine regulations for what is described as ‘ephemeral’ recordings made by a broadcasting body by means of its own facilities and used for its own emissions.”
I would pause to record here the references to the “programmes” of television broadcasters used in paragraphs 93 and 116 to 118 above in the context of the broadcast copyright being proposed for introduction. The word “programmes” was not however incorporated as such into the television broadcast provisions of the ensuing UK 1956 legislation, except in the context of references to cable television.
(ii)In the result, s 14(1) of the Copyright Act 1956 (UK) (since repealed) stipulated that subject to the succeeding sub-sections, copyright should subsist in every television and sound broadcast made by the B.B.C., and sub-sections (4) and (6) in particular stipulated as follows:
“(4)The acts restricted by the copyright in a television broadcast or sound broadcast are:
(a)in the case of a television broadcast in so far as it consists of visual images, making, otherwise than for private purposes, a cinematograph film of it or a copy of such a film;
(b)in the case of a sound broadcast, or of a television broadcast in so far as it consists of sounds, making otherwise than for private purposes, a sound recording of it or a record embodying such a recording;
(c)in the case of a television broadcast, causing it, in so far as it consists of visual images, to be seen in public, or, in so far as it consists of sounds, to be heard in public, if it is seen or heard by a paying audience;
(d)in the case of a television broadcast or of a sound broadcast, re-broadcasting it or including it in a cable programme.
…
(6)In relation to copyright in television broadcasts, in so far as they consist of visual images, the restrictions imposed by virtue of sub-section (4) of this section shall apply to any sequence of images sufficient to be seen as a moving picture; and accordingly, for the purpose of establishing an infringement of copyright, it shall not be necessary to prove that the act in question extended to more than such sequence of images.”
(iii)The Report of the Copyright Law Review Committee 1959 in Australia subsequently chaired by Mr J.A. Spicer (the Spicer Report) occurred in the context of the 1956 United Kingdom legislation enacted pursuant to the Gregory Report. Chapter XVIII related to “Sound And Television Broadcasts”. The following provisions are of potential relevance:
“286… However there can be no doubt that broadcasting authorities are properly entitled to protection against the display in public to a paying audience of the programme received….
287In the absence of express provisions giving copyright in broadcasts, the broadcasting authority could obtain protection by recording or filming its broadcast and rely upon the copyright thus arising in the record or film. In most cases this would doubtless be done. However, the protection should not be dependent upon this course being followed.
288The conclusion we reach, therefore, is that provision should be made, either in the copyright law or in some other appropriate legislation, for the protection of sound and television broadcasts against the kind of pirating envisaged by section 14 of the 1956 Act.
295It seems to us, having regard to the provisions of section 14(6) that under the 1956 Act, a person may, without committing an infringement of the broadcasting copyright, take as many photographs of a television broadcast as he wishes provided no two photographs constitute a sequence or images. We can see no good reason for limiting the protection to this extent and recommend that the taking of a photograph of any part of a television broadcast should be a restricted act if it is done otherwise than for the private use of the person taking the photographs.”
I would draw attention to the use of the word “programme” in paragraph 286 above.
(iv)The Second Reading Speech of the Attorney General Sir Nigel Bowen, relating to the introduction of the Australian legislation to the House of Representatives, contained the following:
“There is no copyright under the existing law in a sound or television broadcast. There are provisions in the Broadcasting and Television Act which prohibit the broadcasting by one person of programmes transmitted by another without the permission both of the original broadcaster and of the Broadcasting Control Board. The Bill establishes a new category of protection for sound and television broadcasts. It provides that copyright, in relation to a broadcast is the exclusive right to make a cinematograph film of the broadcast in the case of a television broadcast, to make a sound recording of the broadcast and to re-broadcast the broadcast. These provisions are contained in clause 87 of the Bill.”
Clause 87 of the Bill became of course s 87 of the Australian Act (see again [7] above for the full text thereof). Again I observe the use of the word “programme(s)”.
Before recording and addressing the respective submissions of the parties in relation to the Nine case in chief as to breach of s 87(c) of the Act concerning television broadcasting copyright generally, it is appropriate for me to summarise the present state of authority thus far identified in relation to the subject of statutory substantiality in the law as to infringement of copyright, to the extent that the same may have some bearing upon the operation of s 14(1))(a) of the Australian Act in relation to television broadcast copyright. Both parties acknowledge that there is an absence of authority directly on point, and that the present proceedings raise novel issues concerning television broadcast copyright and infringement thereof.
In relation to Part III copyright works, the quality of what has been taken will normally dominate in significance in comparison with the quantity of what has been taken, such notion of quality being sometimes paraphrased in terms of the importance or the essence or the materiality of the part taken in relation to the whole of the protected work, whatever it may comprise. The nature and degree of protection of copyright in such works was developed at common law prior to the UK 1911 legislation, and the reason for the provision of the protection which evolved at common law was related to the degree of originality in the expression of the work. Cinematograph films attracted copyright protection following upon their later emerging technology, as did sound recordings, and the concept of originality played a part in the development of such protection. There is no Australian authority bearing directly on the scope of Part IV protection for television broadcasting, but in the context of Part IV protection for published edition, the Full Federal Court in Nationwide News [15] above has postulated an emphasis on both quality and quantity, either of which may be the principal criterion in a particular case (see again the expression “… the quantity is not the only, nor necessarily the principal criterion” at 419 of the Judgment), subject nevertheless to the need to recognise that “the quality of the material taken… is the key issue” (again at 419 of the Judgment). Furthermore the Full Court said that such appraisal of substantiality by reference to the dichotomy of quality and quantity should be “… assessed by reference to the interest protected by published edition copyright”, namely “… the presentation and layout of the edition as distinct from the particular words or images published in the edition” (at 418), and ultimately in each particular case, the assessment will boil down to matters of degree. Moreover the Full Court emphasised the occurrence of infringement where a competing publisher has utilised a distinctive feature of the copyright holder’s layout or presentation for its rival publication, and has done so in circumstances in which it can be inferred that harm will have been caused to the publisher’s commercial interest in the whole of the published edition. Such approach to the interaction between quality and quantity so postulated in Australia by Nationwide News in relation to published edition has been supported in substance by Mance LJ in the published edition copyright litigation Marks & Spencer, but the other two members of the Court of Appeal in that case, particularly Chadwick LJ, would place the weight of their emphasis on quantity. In addition, by adopting the passage from Copinger (13th ed) also extracted in [15] above, Nationwide News postulated a second factor relevant to the statutory principle of substantiality in its application to published edition copyright, namely the object or purpose of the alleged infringer in undertaking the conduct of taking, object or purpose in such context operating beyond the area of the defence of fair dealing as appears from the reference to “object or purpose” in the passage cited in Nationwide News from Ricketson in [15] above. Some measure of support for that additional factor as to purpose or object of taking is to be also found in the judgment of Mance LJ in Marks & Spencer (see the reference to “primary purpose” in para 107 of his judgment extracted in [18] above). The extent to which the foregoing approaches to the nature and dimension of published edition copyright should apply in an analogous way to Part IV television broadcast copyright remains of course to be determined in this judgment. Authorities in England and Australia would add the qualification, at least in relation to Part III works, that copying for objects or purposes of parody (and its related concept burlesque) do not absolve an infringer, in the absence of the infringer’s input of such skill and labour such as to constitute the otherwise infringing work as an original work [16-17], but for the reasons I have additionally indicated in [17] above, I do not think that such qualification applies to satire, because satire, in contrast to parody or burlesque, does not in principle or at least as a general rule involve imitation of other work, but on the contrary the inherent recognition thereof. In the case of television and sound broadcasts, where like published edition, originality is not required for the establishment of copyright, and where the subsistence of copyright depends mainly upon technical considerations related to production, there remains to be interpreted by analogy the extent of interaction, if any, between quality and quantity. That question will shortly be addressed in the light of the decision concerning cinematograph film copyright (another Part IV copyright) in Spelling Goldberg to be discussed in [28(iii)] below, upon which Nine has placed reliance in its submissions on substantiality.
Nine’s submissions on substantiality
Nine’s written submissions commenced with the following general propositions of legal principle, implicitly upon the basis that the same applied to television broadcast copyright:
(i)Whether the copyist has taken a substantial part of the original depends much more on the quality, rather than the quantity, of the material taken;
(ii)The reproduction, performance or, as in the present case, re-broadcasting and copying, of a quantitatively small but nonetheless material part of a work may constitute infringement;
(iii)Whether or not [Ten] has taken a substantial part of the original broadcast is principally a question of fact, being necessarily a question of degree to be judged having regard to all the relevant circumstances of the case;
(iv)In considering the issue of substantial part, the Court may be guided by the sometimes designated “rough” working test advanced by Peterson J in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 to the effect that “what is worth copying is worth protecting”.
These principles have of course been adopted in the context of Part III copyright protection. I have already referred to the above propositions (i), (ii) and (iii) in the course of my discussion of authorities in [12-15] above. Nine then referred in particular to Fernald v Jay Lewis Productions Ltd [1975] FSR 499, which involved literary or dramatic features derived from four pages out of a total of 126 pages of a book, and to Hawkes & Son (already mentioned in [13] above) involving twenty seconds of a marching song “Colonel Bogey”, where Lord Hanworth MR said at 604:
“…when one deals with the word ‘substantial’, it is quite right to consider whether or not the amount of the musical work that is taken is so slender that it would be impossible to recognise.”
Authorities are replete with reference to proposition (iv) above, but the same tends to beg the ultimate question to be resolved in each case.
Nine pointed to the circumstance that “… in relation to every source program there is evidence of significant investment by Nine in the organisation of the program in the case of those produced by Nine, and in the purchase of rights or the commissioning of programs in the case of those produced by others”, and to the further circumstance that Nine and Ten are competitors in the same market. I do not understand there to be any disagreement on the part of Ten with the generality of such propositions. In similar vein, Nine continued rhetorically: “We invest a lot of money in it. Have they got a commercial interest in being able to present TV using footage without having to pay for it, yes, where that does but help their bottom line. Do we have a commercial interest which competes with that, yes, plainly we do”; “Are they using our footage in a way which competes with us and hurts us – plainly they are”; and “… our commercial interest is winning the rating battle. Do they harm our commercial interest by pursuing a precisely competitive personal interest by means of filling up their program in part with [our] footage, yes.” The reference to “hurts us” picks up the reference to causing harm by a rival newspaper contained in Nationwide News but I have to observe that the assertion as to “filling up their programme in part with [our] footage” tends to overstatement.
Nine nevertheless disputed in the course of submissions the existence of any “useful analogy” in relation to the circumstances involved in Nationwide News, which, as has been already pointed out in [15] above, related to the Part IV copyright of published edition as distinct from the Part IV copyright of television broadcasting. However the observations of principle of the Full Court in Nationwide News extracted in [15] are in my opinion clearly capable of application in an analogous way to issues of substantiality involved in television broadcast copyright. There is more than an insignificant degree of affirmative comparison between what is protected by published edition copyright for instance in the form of presentation and layout of a newspaper, and what is protected by television broadcast copyright by way, for instance, of the presentation of television programmes, for example, on the subject of current affairs. Indeed Nine contended that there is i involved skill and expertise on its part in the presentation of its programmes.
Nine thereafter advanced the critical submission on its part that any of the visual images comprised in a television broadcast is an infringement of the copyright in relation to that broadcast, and in so doing advanced the following propositions in sequence:
(i)That para 295 of the Spicer Report, extracted at [21(iii)] above, constituted the recommendation which “obviously led to section 25(4)(a)” of the Act; the recommendation of that paragraph stated that “… the taking of a photograph of any part of a television broadcast should be a restricted act if it is done otherwise than for the private use of the person taking the photographs”.
(ii)That the use of the words “any of the visual images” and “any of those images” in s 25(4)(a) govern and control the meaning of “visual images” in s 87(a).
(iii)That s 25(4)(a) provides the following guidance or direction:
First as to what constitutes the so-called “the source broadcast”;
Secondly as to the extent of the protection afforded by broadcast copyright;
Thirdly as to the approach which the Court should adopt on the question of “infringement by re-broadcast which is consistent with infringement by copying as provided for in section 25(4)(a)”; the reference to “re-broadcast” was of course to s 87(c) of the Act.
(iv)That it would be unlikely that there would be a different operation for s 87(a) from that of s 87(c) so far as the import of “visual images” was concerned, notwithstanding the absence of explicit reference thereto in s 87(c), and that since s 87(a) is to read as applying to “any of the visual images” by virtue of s 25(4)(a), as above stated, so also should s 87(c) be implicitly read and construed.
(v)That the s 10(1) television broadcast definition “… just says visual images [and] it doesn’t use the word program. The whole thing becomes clear, ie that what is being protected are signals which are sufficient in quantity and number such that one can recognise in their product a visual image. That’s certainly a high point of our case”.
In support of the foregoing approach of Nine to the operation of s 25(4)(a) of the Act, which I should point out is not an operational but an interpretative provision (see again the full text thereof extracted in [7] above), Nine thereafter set out the following critical steps in furtherance of its case on substantiality in relation to television broadcasting:
(i)The s 10(1) definition of “television broadcast”, specifying as it does “visual images broadcast by way of television together with any sounds broadcast for reception along with those images”, does not thereby identify any number of images or a cut-off point, or a requirement that the visual images constitute a discrete or complete story or programme.
(ii)Section 25(4)(a) implies in effect that to copy of “any of the visual images comprised in a broadcast” is an infringement, which, so the submission continues, must be so, because each visual image which is broadcast constitutes a television broadcast, and each is subjected to the “extraordinary process of conveyance known as broadcasting”, and further (as already indicated in [27(iv)] above) because s 25(4)(a) is logically designed to ensure that infringement by copying a broadcast is in no way “dimensionally different” to infringement by re-broadcasting.
(iii)The decision of the UK Court of Appeal in Spelling Goldberg Productions Inc v BPC Publishing Ltd [1981] RPC 283 found that to constitute copying of a part of a cinematograph film within s 13(10) of the Copyright Act 1956 (UK), it was enough that there had been a single still photograph made from the cinematograph film, because a single frame of the film was part of a “sequence of images” constituted by the film; s 13(10) of such 1956 legislation contained in that regard the following definitions:
“In this Act –
‘cinematograph film’ means any sequence of visual images recorded on material of any description (whether translucent or not), so as to be capable by the use of that material –
(a)of being shown as a moving picture, or
(b)of being recorded on other material (whether translucent or not), by the use of which it can be so shown.
…”
Moreover the court in Spelling Goldberg also held that the substantiality provisions of the UK 1956 Act did not apply to the s 13(10) definition of a cinematograph film, but that if the same did so apply, a sensible meaning could be given to the “substantial part” of a single frame, since the whole of a single frame may not be taken by an infringer in a particular case, but merely “a split screen”. I should here cite from the judgment of Buckley LJ (at 296-297) the following passage:
“Indeed, as a matter of ordinary use of language, I should have thought that it was very difficult indeed to say that a single frame taken out of, or selected from, all the frames contained in a cinematograph film was not itself part of that film. This view of the matter does not seem to me to be surprising when one remembers that until 1957 every single frame in a film constituted an individual photograph for copyright purposes, and as a matter of construction of the language, as well as a matter of giving the language its ordinary sense as distinct from any special sense that can be derived from close analysis of the provisions of the Act, I reach the conclusion that a single frame from a film is a part of that film within the meaning of the definition of ‘copy’.”
For comparison however, I intrude in this present context the definition of “cinematograph film” contained in s 10(1) of the Australian Act:
“cinematograph film means the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing:
(a)of being shown as a moving picture; or
(b)of being embodied in another article or thing by the use of which it can be so shown;
and includes the aggregate of the sounds embodied in a sound-track associated with such visual images.”
I draw attention to the references in the Australian definition to “the aggregate of the visual images embodied in an article or thing”, and “the aggregate of the sounds embodied in a sound-track associated with such visual images”, both of which are absent from the former s 13(10) Copyright Act 1956 (UK) statutory provision in relation to which Spelling Goldberg was decided, which uses the expression “any sequence of visual images”.
(iv)Nine next pointed to the absence of any reference to the aggregation of visual images in the Australian statutory definition of “television broadcast” contained in the s 10(1) definition thereof, by way of contrast to the s 10(1) definition of cinematograph film, and further pointed to the contrast between “sound broadcast” and the s 10(1) definition of “sound recording” set out below:
“… means the aggregate of the sounds embodied in a record.”
As to the respective legislative definitions of “copy in relation to a cinematograph film”, the same are set out below for comparison for further insight into the reasons for judgment in Spelling Goldberg:
1956 UK Act : “… means any print, negative, tape or other article on which the film or part of it is recorded” (s 13(10)).
1968 Aust Act : “… means any article or thing in which the visual images or sounds comprising the film are embodied” (s 10(1)).
The differences between the definitions cited immediately above caused the following observation to be made in Nationwide News at 420:
“Mr Nicholas also cited Spelling Goldberg… where it was held that one frame of a cinematographic film amounted to a substantial part of the film. But the case turned on the definition under the Copyright Act (UK) of a ‘copy’ of a cinematographic film. That definition has no counterpart in the Act. The case is also not helpful in the present context.”
No definition of “copy” appears however in either the 1956 UK Act or the 1968 Australian Act in relation to a television broadcast, as distinct from a cinematograph film.
(v)The skill, industry, expensive equipment and infrastructure involved in the creation and projection of broadcast images (a submission already paraphrased in the extracts set out in [25] above). I observe that comparable observations were made in Nationwide News by reference to the published editions of The Australian Newspaper, in the context of discussion of the notion of quality.
(vi)The statutory notion of substantiality still has a role to play in relation to television re-broadcasting, even if every single visual image is protected in accordance with Nine’s primary submission; leaving aside the suggestion of Buckley LJ in Spelling Goldberg in [28(iii)] above of part of a single visual image frame (ie split screens) in relation to cinematograph copyright, Nine instanced the hypothesis of a television broadcast without the taking by the infringer of any accompanying sound.
I would observe at this point that if Nine’s submission in (vi) above be correct, it may well follow by analogy that substantiality in relation to sound broadcasting would be fulfilled in relation to each and every individual sound (see again the definition of “sound broadcast” in [5] above), a surprising hypothetical consequence. But in any event, I find this preferred submission of Nine as to copyright protection for each single visual image pursuant to s 87(c) to have an unrealistic and impractical foundation at least by reference to ss 25(4)(a) and 87(a), for the reasons that in the absence of a visual image being filmed or otherwise copied within s 87(a), a visual image which has been broadcast is merely ephemeral or evanescent.
Alternatively to Nine’s primary submission reflected in [27-28] above that television copyright extends to each and every visual image of a television broadcast, Nine advances the following submissions:
(i)A television broadcast relates to the whole of each programme, or else the whole of each segment of a programme where the same breaks down into segments; it would be a question of fact in each case to identify the existence of any such segments; moreover there may be many substantial parts of a programme or a segments of a programme, as in the case of other copyright work. For example, following Nine programmes the subject of the proceedings were submitted as divisive into segments namely, Today, A Current Affair, Who Wants to be a Millionaire?, Australia’s Most Wanted, The Midday Show and Sunday.
(ii)The period of time involved in assessing substantiality may come “… down to the second, the extent of each piece of footage. The footage is used to punctuate the show. Seconds in TV are important. Ratings are decided on 15 minute intervals. People leave, people turn off, they get bored. The man in the street is affected by seconds in TV” (transcript p378).
(iii)Material to (i) and (ii) above are the established principles of copyright law that identification of what is the subject of copyright is usually a question of fact, and Nine illustrates by reference to the principles that literary copyright may exist independently in each of the chapters of a book (see Universal Press Pty Ltd v Provest Ltd (1989) 87 ALR 497 at 501-503), or the taking of a chapter of a book may equate to the taking of a substantial part of the copyright subsisting in the book as a whole literary work, notwithstanding that each chapter is a complete story in itself: University of New South Wales v Moorhouse (1975) 133 CLR 1 at 11 and 20.
Nine Programme Title Fair Dealing Defences for purposes of Criticism and Review Fair Dealing Defence for purposes of Reporting News Sufficient Acknowledgment “The Today Show” (Boris Yeltsin) Defence raised No issue pressed by Nine “Midday”
(Prime Minister Singing)Defence raised Defence raised Defence raised “Wide World of Sports” (Grand Final Celebrations) Defence raised Defence raised No issue pressed by Nine “A Current Affair” (Masquerade Of Introduction Agency) Defence raised Defence raised “Australia’s Most Wanted”
(Aria Award)Defence raised Defence raised “Pick Your Face” (Kerri-Anne Kennerley) Defence raised Defence raised “Crocodile Hunter”
(Scuba Diving)Defence raised Defence raised “Days Of Our Lives”
(Marlena Standing)Defence raised No issue pressed by Nine Days Of Our Lives”
(Marlena Levitating)Defence raised No issue pressed by Nine “Simply The Best”
(Ray Martin)Defence raised No issue pressed by Nine “The Inaugural Allan Border Medal Dinner”
(Prime Minister Embarrassed)Defence raised Defence raised “Sunday”
(Drugs at Olympics)Defence raised No issue pressed by Nine “The 72nd Academy Awards”
(Artificial Fog)Defence raised Defence raised “Sale Of The New Century”
(Lighting Switched Off)Defence raised Defence raised “The Today Show” (Prasad Interview) Defence raised Defence raised “The Today Show” (Opera House) Defence raised Defence raised Defence raised “Nightline”
(Gosper Interview)“Newsbreak”
(Technical Glitch)Defence raised Defence raised “Who Wants To Be A Millionaire”
(Ingredients of Xmas Pudding)Defence raised Defence raised “The Today Show”
(Child Yawning)Defence raised Defence raised
I will record, separately in relation to each Nine programme or programme segment in the sequence appearing in [71] above, the respective submissions of Ten and Nine, and my conclusions in relation thereto. In so doing, I am conscious of the circumstance that individual tastes and appraisals can readily intrude upon the views that may be adopted in relation to what is fair dealing in particular contexts, as well as what may reasonably be characterised as a purpose of criticism or review of a particular audio-visual item in the form, as here of course, of a television broadcast, or any other audio-visual item or a “work” included in the first-mentioned television broadcast (s 103A). I am also conscious of the further circumstances, first, that Ten and Nine are rivals or competitors for contemporary television audiences, and that The Panel programmes the subject of challenge have been broadcast concurrently with unrelated television broadcasts being then undertaken by Nine, and further that the burden of establishing ss 103A and 103B(1)(b) defences lies upon Ten. I am further conscious of the circumstance that as has been earlier emphasised, the object or purpose of a re-broadcast is material to establishing whether “a substantial part” of a re-broadcast has occurred, and that an object or purpose of satire light entertainment may also intrude conceptually into a consideration of issues concerning purposes of criticism or review, and perhaps also of issues concerning purposes of reporting of news.
(i)“The Today Show” (Boris Yeltsin)
Ten submits that its re-broadcast here of footage concerning certain activities of Boris Yeltsin constituted fair dealing for the purpose of reporting news within s 103B(1)(b), being news relating to the conduct of President Boris Yeltsin in dismissing the Russian Cabinet on several occasions. What supposedly introduced this topic was the pending Australian Referendum on the Republic. Two issues of principle are involved, first that news is not necessarily to be restricted to current events, a principle which Nine’s submissions have tended to disregard (see John Fairfax cited in [49] above), and secondly that the relevant news being re-broadcast need not wholly inhere in the audio-visual item being re-broadcast for the purposes of s 103B(1)(b). The re-broadcast here contains the following comments of members of The Panel which might arguably be thought, individually or cumulatively, to constitute “news” within s 103B(1)(b):
“President Yeltsin dismissed the Russian cabinet every eighteen months;
Prime Minister Putin is an “ex KGB spy”.
President Reagan (implicitly) was so old he could not “take himself to the toilet”, and was “too old to be running the country”.
President Yeltsin’s disadvantage in holding office was not “an age limit” but a “blood alcohol limit”.
President Clinton “is all there but he’s also all there and that has led to problems where Ronald (Reagan) wasn’t about to do anything with an intern”.
As I have earlier pointed out in [66(vii)] above, news may involve the use of humour, but that there can nevertheless be considerable difficulty in distinguishing news from entertainment (see [58] above). As a matter of judgment and impression, I prefer the conclusion that the purpose of this re-broadcast, evident from The Panel discussion, was that of entertainment rather than the reporting of news, or was so re-broadcast in association with the reporting of news. I would therefore have rejected Ten s 103B(1)(b) defence, had Ten not succeeded in the first place on the issue of infringement. No issue arises as to sufficient acknowledgment.
(ii)“Midday”
Ten contends that its re-broadcast constituted fair dealing for the purpose of criticism or review of the “Midday” programme, and of the role of the presenter Ms Kennerley in that programme, and Ten relied on the principle in Vosper, supra at 94, to the effect that criticism or review may extend to ideas underlining the subject matter of copyright (see the later elaboration on that principle in Pro Sieben at [52(v)] above). I extract below the following on-screen remarks of various members of “The Panel”, in order to illustrate the major thrust of The Panel’s comments of relevance:
“… did anyone see when Kerri-Anne got the Prime Minister John Howard to sing Happy Birthday to Don Bradman?”
“That will get him back in.”
“Its not right to mock someone’s stature but he really looks like he should have a hand up his a… moving his mouth when he sits on that little stool…”
…
“Well I reckon if he didn’t sing it, she would have put her hand up his a…”
“Kerri-Anne will not take no for an answer.”
“She is essentially a Labour voter cause she got Costello to do the macarena …and made him look like an idiot and now she’s done it with John Howard.”
“It is interesting with Midday because it was funny at the Logies this year (be)cause she was hot favourite for the Gold Logie. And I remember a conversation. I’ll never forget this. A Nine executive coming up to me and saying ‘Hey does Kerri-Anne win?’ And I said “Oh no, she doesn’t actually”. He goes “Thank God”. And I was like ‘Why’s that?’ And he goes ‘Mate, she would be unbearable’…”
“Leave Kerri-Anne alone. She does a good job I reckon.”
“She resurrected it.”
“You think about that though, what is it five hours.”
“Five days a week.”
“She is an ideal Midday host. It is interesting when Derryn Hinch was hosting it, the rating(s) aren’t much better with Kerri-Anne, yet Derryn was looked upon as a Midday failure.”
“A total failure.”
“Whereas Kerri-Anne like on Monday, she was beaten by Judge Judy in Adelaide and Perth.”
…
I have encountered difficulty in deciding whether the purpose of Ten in re-broadcasting the subject material was that of criticism and review, despite the somewhat disparaging remarks made concerning Ms Kennerley and the “Midday” programme which she had been hosting for some time. Ten has submitted that the purpose of the criticism or review related to both the programme and Ms Kennerley’s role in it, but I think that the submission is not sufficiently supported by what I have extracted above. I would conclude that the purpose of Nine’s dealing with the subject footage of “Midday” was to satirise aspects of Ms Kennerley’s performance as presenter of “Midday”, and certain supposed personality traits and political allegiances. I do not think that on balance, and as an issue of fact and degree, it can rightly be postulated that The Panel here engaged in criticism or review of “Midday”, and that such was its purpose. If it had become necessary to determine Ten’s reliance upon s 103A in relation to what would have otherwise constituted breach of copyright constituted by this re-broadcast, I would have rejected such basis of defence. I would also have rejected Ten’s entitlement to have relied upon s 103B(1)(b), upon the purported basis that the Prime Minister’s singing of “happy birthday” to Sir Donald Bradman was “newsworthy”. It is unrealistic and inapposite to characterise Ten’s re-broadcast of such event as having the purpose of or being associated with “the reporting of news”. Such event involving the Prime Minister singing had been of course wholly broadcast by Nine in the full context of the earlier “Midday” presentation, and there is no suggestion from Ten to the effect that the same had been treated as newsworthy in whole or in part. Ten’s purpose in re-broadcasting the event was rather to satirise the Prime Minister’s already well-known admiration for Sir Donald Bradman. If I am wrong in my conclusion as to Ten’s 103A defence as to criticism and review, I would have found in favour of Ten on the issue of “sufficient acknowledgment”. I am unable to understand why Ten’s use of the so-called “on screen watermark ‘Ch 9’” was not sufficient identification of the fact that the “Midday” programme footage had been originally broadcast by Nine. To the average viewer, the material re-broadcast would have identified to him or her the source of the re-broadcast footage to Nine, without even the need to add Nine’s logo (cf the dictum extracted from Pro Sieben at [54] above where a German television company had broadcast to the United Kingdom). I should add that where the on-screen watermark “Ch 9” has been used elsewhere in Ten’s re-broadcasts the subject of the proceedings (see iv-vii, xi, xiii-xvi, xviii-xx), there was constituted a sufficient acknowledgment with s 103A.
(iii)“Wide World of Sports” (Grand Final Celebrations)
This re-broadcast of two pieces of Nine footage of the Rugby League Grand Final winning team’s post match, though still on field, celebrations, focused upon the winning Melbourne Storm captain Glen Lazarus, and to a lesser extent the team members. Such events took place in the context of preceding and subsequent footage of other recent sporting events involving Australian participants, which other footage did not however originate from Nine. In support of its fair dealing defence of criticism and review, Ten contended that its programme’s alleged criticism and review was constituted by “… a discussion of the underlying activity of exuberant behaviour by sportsmen shown in the footage”. In my opinion, the exuberant behaviour of Mr Lazarus and any members of his team was not the subject of criticism or review on the part of Ten, nor did The Panel members explicitly do or say anything approaching the true notion of criticism and review, irrespective of what might conceivably be said about the other footage of sporting situations contemporaneously re-broadcast by Ten from non-Nine sources. I would refer again to the dictionary definitions as to “criticism” and “review” extracted from De Garis at [48] above. I record that if I am wrong in that conclusion, no issue is raised by Nine as to the absence of sufficient acknowledgment. Whether Ten is correct in its contention that its re-broadcast of this Nine footage was a fair dealing for the purpose of reporting news within s 103B(1)(b) raises the more imponderable or elusive distinction between news and entertainment [58]. In my opinion, the balance falls on this occasion sufficiently clearly in favour of entertainment, albeit not of a satirical but rather of a light hearted and amusing kind. It follows that if Ten had not succeeded on the ground of substantiality, I would not have upheld either of the fair dealing defences discussed above.
(iv)“A Current Affair” (Masquerade of Introduction Agency)
Ten contends that this re-broadcast was a fair dealing for the purpose of criticism or review of “A Current Affair” episode, by reference to such programme’s use of “poor disguises”, who appeared thereon, first of a member of the public who unwittingly visited a brothel in the belief that it was an introduction agency, and secondly of a person employed at the brothel as a receptionist. The Executive Producer of “A Current Affair” admitted in cross-examination that “… a disguise is a disguise and if you had known the person well I’d reckon by and large they’re not hard to see through”. Ten was able to make entertaining mileage out of its rival’s unsuccessful efforts in seeking to adequately disguise these two members of the public who had apparently volunteered to appear on Nine’s programme. After the re-broadcast by Ten of the Nine episode had occurred, one member of The Panel put on a replica of the facial disguise of the male person interviewed on the Nine episode the subject of the re-broadcast, which occasioned further mirth to The Panel members and their studio audience. Whilst bearing in mind that this re-broadcast by Ten was made in purported derogation of its business rival’s practices, albeit in an entertaining way and in circumstances involving an element of public interest, the essence of the theme the subject of the Ten re-broadcast seems to me to marginally weight the balance in favour of Ten’s establishment of the statutory purpose of criticism or review. It is legitimate to criticise a rival telecaster for inadequately protecting the anonymity of its interviewees, even if the criticism takes advantage of humorous incidents to the rival’s inadequacy. Nine has further contended that there was nevertheless absent fair dealing, because the “Simply the Best” re-broadcast on the part of Ten addressed in sub-paragraph (xv) below occurred in the same evening’s programme of The Panel, but I do not think that such circumstance is material to the issue of fair dealing purpose, such as deprive the otherwise availability of the defence. Accordingly had Ten not succeeded on the issue of substantiality, I would have ruled in its favour on the issue of criticism or review.
(v)“Australia’s Most Wanted” (Aria Award)
Ten contends that this re-broadcast constituted a fair dealing for the purpose of criticism or review “… of the Aria Awards programme and of the dramatic work being the staging of the performance by Vanessa Amorosi thereby depicted”. The Aria Awards programme is or was a Ten production, in which Vanessa Amorosi played a performing musical role. Thus Ten purportedly invokes the limb or component of s 103A relating to “another audio-visual item or work”. Nine contends in that respect that there is no connection of any relevance between the two programmes for s 103A purposes, and I think that is clearly correct. Section 103A does not authorise the re-broadcast of television broadcast copyright merely to set the context whereby the re-broadcaster thereafter supposedly criticises or reviews its own television broadcast as distinct from the re-broadcast. Furthermore, there can be no justifiable basis for Ten’s apparent contention that by this re-broadcast of its own television broadcast in the context of its contemporaneous re-broadcast also of the Nine broadcast, Ten thereby criticised or reviewed the latter within s 103A. Nine is correct in its contention as to Ten having used its own Amorosi footage for purposes merely of humour. Accordingly the Ten s 103A defence here advanced must fail on any view of the way it is intended to operate. The s 103B(1)(b) defence should also fail, since the re-broadcast was undertaken by Ten for the purpose of providing a merely contextual theme as a basis for generating humour from Ten’s own audio-visual item, there being no reporting of news the subject of any true purpose of Ten, nor any association of Nine’s footage with any supposed reporting of news by Ten. It follows that had Ten failed on the issue of substantiality, I would have found that no fair dealing defences would have been open to Ten.
(vi)“Pick Your Face” (Kerri-Anne Kennerley)
Ten has raised here the defence of fair dealing for the purpose of criticism or review, the criticism being of the above re-broadcast audio-visual item and of “underlying work including the artistic work that the child contestant was manipulating”, and the criticism taking the form of “a character of some colourfulness from one television programme (The Drew Carey Show) [being] confused with the Channel Nine personality Kerri-Anne Kennerley”. There was no purpose of criticism or review, the re-broadcast being used by Ten for the purposes of entertainment. Perhaps it is appropriate to refer again to the observation of Beaumont J in De Garis that the statutory expressions “criticism” and “review” involved the passing of judgment.
(vii)“Crocodile Hunter” (Scuba Diving)
It is first appropriate to explain the context to this re-broadcast. Nine’s “Crocodile Hunter” television programme features Mr Steve Irwin. Some ten years ago or thereabouts, Ten broadcast a comedy programme called “The Comedy Company”, which featured Mr Glen Robbins playing the role of “Uncle Arthur”. Mr Robbins is a member of The Panel. This re-broadcast displayed Mr Irwin swimming underwater in the presence of sharks, equipped with breathing apparatus and microphone. Mr Irwin sounded like “Uncle Arthur” when he spoke underwater. Mr Robbins prefaced Mr Irwin’s underwater commentary as follows:
“I think I’ve been ripped off. I could be paranoid but on Saturday night there was a programme The Crocodile Man and look I could be wrong – I don’t know – I may be way out of line here. But I think he’s ripping off one of my characters. You make up your own mind…. He’s underwater.”
Ten raised the s 103A defence of fair dealing way of criticism and review. Plainly in my opinion, no criticism or review explicitly or implicitly was undertaken by Ten in the context of this amusing re-broadcast. Accordingly had Ten failed on the issue of substantiality, I would have held that Ten failed to make out its s 103A defence.
(viii)“Days Of Our Lives” (Marlena Standing)
The evidence discloses that “Days Of Our Lives” has been broadcast by Nine since about 1962 or 1963, and for probably the last fifteen years, the programme has been Nine’s highest rating day time show. Nine’s Director of Programmes agreed to the description of the programme as “a dramatic soap opera”, and as containing “elements of melodrama”, and “a lot of tongue in cheek scenes”. Its television audience is indicated in the evidence to be mainly female. The female character Marlena has been displayed on the programme as devil possessed, and the re-broadcast scene shows her on a balcony in that condition. Ten raised the s 103A defence of criticism and review, upon the basis that the footage demonstrates that the script writers of “Days Of Our Lives” are undertaking recourse to rather desperate and pathetic measures to prolong the life of an already protracted and attenuated day-time television programme. Part of The Panel commentary includes the following:
“The writers sit around and they go… they’ve gone after 10 or 11 years and they’ve gone “guess we’ve got to make someone possessed.”
The commentary of The Panel, and the way in which the visual images are re-broadcast, undoubtedly involve a measure of satire and humorous entertainment, but they are relevantly more than that. As a matter of fact and impression, the commentary and the visual images imply a purpose of criticism and review, in the sense of the dictionary definitions reproduced in [48] above, and do so on the footing of an innuendo of loss of originality and novelty of theme. My conclusion is that the re-broadcast was undertaken for the purposes of criticism and review, and in the circumstances such criticism and review was fair for such purposes, albeit that the same emanated from a rival television station.
(ix)“Days Of Our Lives” (Marlena Levitating)
What I have observed and concluded in sub-paragraph (viii) above applies equally to the re-broadcast of the following day’s programme of “Days Of Our Lives”. Thus Ten would have made out the s 103A defence here as well.
(x)“Simply The Best” (Ray Martin)
Ten raises the defence of fair dealing for purposes of criticism and review in relation to this re-broadcast. No issue is raised by Nine as to sufficient acknowledgment. Ten frames its contention as follows:
“The underlying artistic work was a design for the set which was criticised. The underlying method of scoring which was the outcome of a literary work, being a treatment for the programme, was criticised. It is not necessary to criticise the audio-visual item, being the programme Simply The Best, itself, although that was also undertaken.”
The essence or substance of The Panel’s commentary upon the footage here re-broadcast was mainly a discussion of what had occurred on the Nine “Simply The Best” programme, and an answering of the questions of those members of The Panel who had watched it or who had not understood it. There was however a somewhat oblique reference to “the set” in the following terms:
“… this is the program on Channel Nine last night with Ray Martin? The voting one?
Yes
I think he should have come out dressed in a toga.
The set was a little…
Perplexing.
It was sort of like the seats were ‘Who Wants To Be A Millionaire’ meets the desks of ‘The Footy Show’ meets an inner-city brothel. It was just… what I imagine an inner-city brothel would look like is what I mean…
Yeah, isn’t that… they’ve recycled a few sets there.
Oh dame it… he didn’t keep going because he actually said the joke ‘How about the set eh?’ Funny thing happened on the way to the forum.”
However the paucity of evidence as to what was in substance the criticism of the so-called “set” has not left a viable basis for comprehending, much less resolving, what was the true nature of the alleged criticism, and what was the purported basis therefore.
There is insufficient evidence upon which I could have made a finding in favour of Ten, pursuant to s 103A, and had it been necessary so to do, I would have rejected Ten’s defence of criticism and review.
(xi)“The Inaugural Allan Border Medal Dinner” (Prime Minister Embarrassed)
Ten raises the defence of fair dealing for the purpose of reporting news in relation to this re-broadcast. Ten has submitted that it was the televising of the “excision by The Panel” (namely that part of the Nine footage showing Mr Glenn McGrath not noticing the Prime Minister’s attempt to congratulate him) that created what would otherwise have remained “hidden” news within s 103(1)(b), and Ten points to a famous photograph of a very young President Clinton shaking the hand of US President John F Kennedy, which photograph had remained unnoticed and unimportant for some thirty years until the former President’s own election. There is evidence to the effect that the “hidden” image of the Prime Minister had not been noticed by Nine’s Director of Sports, who said with the benefit of hindsight “… if it were you or me I’d want [it] edited out now that it’s been drawn to public attention. He looks silly.” Ten submits that unusual or incongruous moments in an Australian Prime Minister’s life are inherently and necessarily news, and relies on evidence to such effect given by Nine’s Director of News in cross-examination. I am of the opinion that Ten’s submission is on balance correct, and that Nine’s submission that “It was only The Panel antics which caused anyone to think twice about it” is not to the point. The situation here is I think materially distinguishable from the re-broadcast involving the Prime Minister appearing on “Midday” (sub-paragraph (ii) above), which I have found did not involve the reporting of news for the reasons there indicated. If it had become necessary for me to have done so, I would have upheld Ten’s defence here as to the purpose of reporting of news.
(xii)“Sunday” (Drugs at Olympics)
Ten raises the defence of fair dealing for the purpose of reporting news in relation to this re-broadcast. The re-broadcast occurred ten days after Nine’s original broadcast, the latter having “… generated an enormous amount of news attention”, as Nine’s executive producer of “Sunday” acknowledged in evidence. Nine contends that this footage was not presented by The Panel as a news report, the Nine broadcast having taken place ten days earlier, but Nine propounds an unjustifiably restrictive view of the nature of news (see again John Fairfax in [49] above). In my opinion, the subject re-broadcast by Ten constituted perhaps the clearest exemplification of its s 103(1)(b) defences as to reporting of news which have been propounded in the proceedings, and the same would have sustained in this judgment, had Ten failed on the issue of substantiality in the first place. The theme of The Panel commentary on this re-broadcast on its part was that the allegations of drug-taking made on the Nine footage by a so-called Sports Performance Consultant constituted gross exaggeration, yet had been inappositely made in the context of the pending Olympic Games in Sydney. Drug taking in sport has been of course a very live and public issue in Australia for some considerable time. Despite the serious nature on this occasion of The Panel’s discussion in relation to Nine’s footage, one member of The Panel introduced a measure of satire to the discussion, namely:
“Kill the athletes, after you keep one bullet in the starting gun. So when the first rig is propped… take it to Quincy… he works it all out and then we say we will award the medal posthumously with a stretcher on a dais. It is the only answer.”
Otherwise, the discussion amongst The Panel members and their guest member was essentially serious and focussed in its repudiation of what Nine’s programme guest had been saying on the widespread use of drugs by elite athletes. Nine disputes the existence of fair dealing, contending that the use of the footage was not necessary for the purpose of asking the questions which were put to the Panel guest member. Nine further contends that the extensive nature of the usage was inherently unfair, and that this was only one of two re-broadcasts of Nine footage made in this particular evening’s programme of The Panel, the other being that the subject of sub-paragraph (xiii) below, which was however related to a Nine programme originally broadcast on a different occasion to that of the “Sunday” programme here involved. I do not think that Nine’s submissions are sufficient to gainsay the news reporting defence. Ten did not maintain a criticism or review defence. In the result, had Nine succeeded on the substantiality issue in relation to this re-broadcast, I would have upheld Ten’s defence of fair dealing for the purpose of reporting news.
(xiii)“The 72nd Academy Awards” (Artificial Fog)
The defence here raised by Ten is fair dealing for the purpose of criticism or review. The purpose of the Academy Awards programme is to choose the best male actor and the best female actress. That part re-broadcast featured the well known US singer Isaac Hayes, and the same focused for purposes of humour upon him becoming mistakenly enveloped in an artificially contrived fog by reason of accidental misuse of the studio’s fog machines. The Panel’s point is that the televising of such a premier event should have been better controlled technically in order to avoid the mishap which occurred to Isaac Hayes in the course of his performance. Its dialogue concerning this brief mishap was as follows:
“Did you see that? …Have a look at this. Isaac Hayes comes out…
This is great.
Okay, okay Ken is going to stop the fog machine now. …He’s distracted by the girls… oop… the fog machine. We’ve lost Isaac Hayes. Isaac Hayes is in the middle of that fog. Do they go the wide shot they go… okay the fog machine… back again.
Oh no.
This is.
That’s really bad.
That’s a pea souper.
That’s a real pea souper. It is like an early Countdown.
Can I say.
It is.
…”
Because of the humorous, if not hilarious, treatment by The Panel of this footage, an initial reaction may well be that the purpose of this re-broadcast was light satire in the nature of entertainment proffered by a rival television station, and did not involve the passing of judgment on the merits of Nine’s television presentation (see again the dictionary definitions and commentary extracted from De Garis in [48] above). My conclusion is that criticism or review do not necessarily exclude notions of comedy or satire, even though expressed lightly. As was said in Vosper, “But after all is said and done, it must be a matter of impression” [49], and my impression on a somewhat precarious balance is in favour of a justifiable Ten purpose here involved of criticism and review. Consequently had I not found in favour of Ten upon the issue of substantiality, I would have found that the defence of fair dealing for the purpose of criticism or review had been made out.
(xiv)“Sale Of The New Century” (Lighting Switched Off)
Ten seeks to maintain the defence of fair dealing for the purpose of criticism and review by reference to the introduction by Nine in the preceding February of a change in format which signalled the departure of one of the remaining contestants by way of putting that losing contestant in a dark shadow, so that he or she was no longer recognisable. The “Sale Of The New Century” had already been running for about nineteen years. The commentary by The Panel members humorously described this change as a “scandal”, and some of the other comments were as follows:
“… they put the loser in the dark now, if you lose they knock you out”.
“They don’t make them leave… they let them sit in the dark.”
“You wouldn’t want to be afraid of the dark.”
“Hey I love it.”
Whilst criticism and review “are expressions of wide and indefinite scope” (Pro Sieben at [52(iv)]), minds may differ as to whether the dictionary definitions are here fulfilled in relation to what is at least light humour or entertainment. With some difficulty but nevertheless on balance, I think that The Panel’s purpose in using this excerpt of Nine footage was to lightly and humorously criticise or review Nine’s technical programming procedure recently introduced to this long running programme. If therefore Ten had not succeeded on the issue of substantiality, I would have upheld this defence.
(xv)“The Today Show” (Prasad Interview)
A not dissimilar issue arises again as in “The Sale Of The New Century”. The Nine interviewer is shown as engaging in a serious interview of the manager of the Matthew Talbot Hostel, whilst apparent occupants of the Hostel visibly, though not audibly, intrude into the visual images of the interviewee. A Nine supervising producer agreed in cross-examination that if Nine was to decide to re-run this material again, Nine would exclude “the footage where people were interfering with the flow between Mr Liebmann and Mr Prasad”. This Ten re-broadcast, it may be said, encaptures the perils of live interviews on television. Again on balance, I think that the purpose in using this excerpt was to lightly and humorously criticise, and I therefore, and not without some difficulty, repeat the conclusion reached in favour of Ten, as in the preceding paragraph.
(xvi)“The Today Show” (Opera House)
This excerpt relates to children rehearsing on the Sydney Opera House steps a song intended to be used at the Sydney Olympic Games, having been released not long before the Nine broadcast, and televised by the same “The Today Show” earlier in the day. Interspersed amongst the lyrics is the Australian slang “G’day G’day”. Nine’s supervising producer gave the following testimony under cross-examination.
“Yes, so it was something that SOCOG had endorsed – Yes.
To be used by various groups as a part of the means of welcoming visitors is it? Yes.
For the Olympic period? Yes.
So it was a matter of some interest because it was going to be the song that Australia was putting forward to those visitors as a note of welcome? Certainly, yes.
The quality of the song and the choice of the song was a matter of news at that time? Yes.”
I accept the submission of Ten that the re-broadcast was a fair dealing for the purposes both of criticism and review and of reporting news. It follows that had Ten not succeeded on the issue of substantiality, I would have found that such defences had been made out.
(xvii)“Nightline” (Gosper Interview)
The defences both as to criticism and review and as to reporting of news were not maintained by Ten, and if I may say so, rightly not maintained, as I would have rejected the same.
(xviii) “Newsbreak” (Technical Glitch)
Ten has maintained its defence of fair dealing for the purpose of criticism and review. This technical glitch involved the appearance of the presenter of “Newsbreak” being accidentally shrunk or abbreviated to a very small size of what would have been intended. Why the glitch occurred is not known. The dialogue included the following”
“Can we show a few moments… live television fraught with peril as what we all know here on The Panel… a couple of moments of Channel Nine News this week… can we have a look at a bit of Peter Hitchner in action… Channel Nine News.
Never quite learn.
He wasn’t meant to be a web site.
Oh, you blew it but we can top that…”
The nature of the criticism or review issue here arising is somewhat similar to that arising in sub-paragraph (xv) above, the criticism being made in a humorous way. Further, the re-broadcast, by Ten and the above commentary by the Panel, are said to demonstrate that live television can result in embarrassing circumstances for a broadcaster, here of course Channel Nine. Had I not found in favour of Ten on the issue of substantiality, I would have upheld Ten’s defence of criticism and review.
(ixx)“Who Wants To Be A Millionaire” (Ingredients of Xmas Pudding)
The defence of fair dealing for the purpose of criticism and review has been maintained by Ten in relation to “at least… the literary work… included in the [audio-visual] item”, upon the footing that “the question being criticised [is] too easy”. I would extract from the transcript of The Panel commentary below, by way of illustration of the defence so framed:
“Because it depends like the categories… like are very widely spread so in every category the questions are quite easy but if you don’t know everything about that category then you’re still lost.
Also my lifelines, my phone a friend, I mean look at them.
The early questions are getting a bit easier… in Who Wants to be a Millionaire?
I know because they have expanded the format.
They’ve sped it up.
And they go did we have like… I think Eddie even laughed at this the other night… Have a look at his for $100.”
Again the criticism proffered is undertaken in a humorous or lightly entertaining way. I think that the defence of criticism and review has nevertheless been made out, and again there has been “sufficient acknowledgment” by at least reason of the display of “Ch 9”.
(xx)“The Today Show” (Child Yawning)
Ten summarises its defence of fair dealing, for the purpose of review alone, essentially as follows:
“The context shows that The Panel is reviewing a brief piece of live television and, again, through the intermediate medium of television showing how precarious that can be.”
Nine joins issue as follows:
“There are no words of criticism. There is no discussion about the particular questions asked or the style of the interview. There was no genuine criticism.”
I think that Nine’s submission is correct. What was televised here was an interview by Richard Wilkins of a child who yawns when he is asked a question. The child was apparently a minor celebrity who was featured on that particular morning’s programme. I do not think that the Ten defence of review should succeed. As the dictionary definition indicates (see [48] above), “review” is nevertheless “a critical article” or “a critique”. The re-broadcast here, focusing as it does on the child yawning during the interview, might well illustrate how “precarious” television may be, as Ten submits above, but that does not give the re-broadcast the attribute of review. Had Ten not succeeded on the issue of substantiality, I would have dismissed the defence here of review.
I therefore summarise my findings upon the fair dealing defences for purposes of criticism or review and of reporting news as follows:
Fair dealing defences which would have been upheld if breach of copyright had been found to have occurred
Criticism or Review Reporting News “A Current Affair” (Masquerade of Introduction Agency) “Days Of Our Lives” (Marlena Standing) “Days Of Our Lives” (Marlena Levitating) “The Inaugural Allan Border Medal Dinner” (Prime Minister Embarrassed) “Sunday” (“Drugs at Olympics) “The 72nd Academy Awards” (Artificial Fog) “The Sale Of The Century” (Lighting Switched Off) “The Today Show” (Prasad Interview) “The Today Show” (Opera House) “The Today Show” (Opera House) “Newsbreak” (Technical Glitch) “Who Wants To Be A Millionaire” (Ingredients of Xmas Pudding) Fair dealing defences which would have been rejected if breach of copyright had been found to have occurred
Criticism or Review Reporting News “The Today Show” (Boris Yeltsin) “Midday” (Prime Minister Singing) “Midday” (Prime Minister Singing) “Wide World of Sports” (Grand Final Celebration) “Wide World of Sports” (Grand Final Celebration) “Australia’s Most Wanted” (Aria Award) “Pick Your Face” (Kerri-Anne Kennerley) “Crocodile Hunter” (Scuba Diving) “Simply The Best” (Ray Martin) “The Today Show” (Child Yawning) I have not referred to those fair dealing defences which were withdrawn at the time of or prior to final written submissions, nor to “Nightline” (Gosper Interview), concerning which re-broadcast both defences were withdrawn in Ten’s final address.
In the result, I dismiss the causes of action for breach of television broadcast copyright brought by Nine based upon s 87(c) of the Act. I invite submissions as to costs in the light of the findings thus far made, including provisional findings as to the fair dealing defences. I stand over the proceedings for mention for the purpose of fixing a date for hearing of the causes of action brought by Nine based upon s 87(a) of the Act.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate:
Dated: 20 February 2001
Counsel for the Applicant: Mr A.J.L. Bannon SC
Dr D.T. KellSolicitor for the Applicant: Gilbert & Tobin Counsel for the Respondent: Mr J.M. Ireland QC
Mr R. CobdenSolicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 13-17, 22-23 November 2000 Date of Judgment: 20 February 2001
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