Thoroughvision Pty Ltd (ACN 100 040 033) v Sky Channel Pty Ltd (ACN 009 136 010)

[2005] FCA 1527

FEDERAL COURT OF AUSTRALIA

Thoroughvision Pty Ltd (ACN 100 040 033) v Sky Channel Pty Ltd (ACN 009 136 010) [2005] FCA 1527

THOROUGHVISION PTY LTD (ACN 100 040 033), CHANNEL SEVEN MELBOURNE PTY LTD (ACN 004 342 303), CHANNEL SEVEN SYDNEY PTY LTD (ACN 000 145 246), CHANNEL SEVEN BRISBANE PTY LTD LIMITED (ACN 009 684 020), CHANNEL SEVEN ADELAIDE PTY LIMITED (ACN 007 625 603), CHANNEL SEVEN PERTH PTY LIMITED (ACN 008 679 294), CHANNEL SEVEN QUEENSLAND PTY LIMITED (ACN 009 707 313), SEVEN NETWORK (OPERATIONS) LIMITED (ACN 052 845 262) and RODNEY MILTON FITZROY, CHAIRMAN, VICTORIA RACING CLUB  -v-  SKY CHANNEL PTY LTD (ACN 009 136 010)

VID 1291 of 2005

RYAN J

28 OCTOBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1291 of 2005

BETWEEN:

THOROUGHVISION PTY LTD (ACN 100 040 033)
First Applicant

CHANNEL SEVEN MELBOURNE PTY LTD (ACN 004 342 303)
Second Applicant

CHANNEL SEVEN SYDNEY PTY LTD (ACN 000 145 246)
Third Applicant

CHANNEL SEVEN BRISBANE PTY LTD LIMITED (ACN 009 684 020)
Fourth Applicant

CHANNEL SEVEN ADELAIDE PTY LIMITED (ACN 007 625 603)
Fifth Applicant

CHANNEL SEVEN PERTH PTY LIMITED (ACN 008 679 294)
Sixth Applicant

CHANNEL SEVEN QUEENSLAND PTY LIMITED (ACN 009 707 313)
Seventh Applicant

SEVEN NETWORK (OPERATIONS) LIMITED (ACN 052 845 262)
Eighth Applicant

RODNEY MILTON FITZROY, CHAIRMAN, VICTORIA RACING CLUB
Ninth Applicant

AND:

SKY CHANNEL PTY LTD (ACN 009 136 010)
Respondent

JUDGE:

RYAN J

DATE OF ORDER:

28 OCTOBER 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The application for interlocutory injunction be refused.

2.Subject to any further or other direction of the docket Judge there be a speedy trial of the substantive application herein.

3.        There be a directions hearing on 11 November 2005 at 9.30 am

4.The costs of all parties of the application for interlocutory relief, including the costs of the hearing on 21 October 2005, be costs in the cause.

5.Liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other party.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1291 of 2005

BETWEEN:

THOROUGHVISION PTY LTD (ACN 100 040 033)
First Applicant

CHANNEL SEVEN MELBOURNE PTY LTD (ACN 004 342 303)
Second Applicant

CHANNEL SEVEN SYDNEY PTY LTD (ACN 000 145 246)
Third Applicant

CHANNEL SEVEN BRISBANE PTY LTD LIMITED (ACN 009 684 020)
Fourth Applicant

CHANNEL SEVEN ADELAIDE PTY LIMITED (ACN 007 625 603)
Fifth Applicant

CHANNEL SEVEN PERTH PTY LIMITED (ACN 008 679 294)
Sixth Applicant

CHANNEL SEVEN QUEENSLAND PTY LIMITED (ACN 009 707 313)
Seventh Applicant

SEVEN NETWORK (OPERATIONS) LIMITED (ACN 052 845 262)
Eighth Applicant

RODNEY MILTON FITZROY, CHAIRMAN, VICTORIA RACING CLUB
Ninth Applicant

AND:

SKY CHANNEL PTY LTD (ACN 009 136 010)
Respondent

JUDGE:	RYAN J
DATE:	28 OCTOBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court an application by Thoroughvision Pty Ltd (“TVN”) and eight other applicants for an interlocutory injunction restraining the respondent Sky Channel Pty Ltd (“Sky”) from;

   ‘… doing any of the following on its “Racing Retro” television program:

   (a)causing any of the Victorian TVN Films (as defined in paragraph 4 of the Statement of Claim), or any of the Sydney TVN Films (as defined in paragraph 5 of the Statement of Claim), or a substantial part thereof, to be seen or heard in public;

   (b)communicating any of the Victorian TVN Films or any of the Sydney TVN Films, or a substantial part thereof, to the public;

   (c)causing any of the Seven Films (as defined in paragraph 10 of the Statement of Claim), or a substantial part thereof, to be seen or heard in public;

   (d)communicating any of the Seven Films, or a substantial part thereof, to the public;

   (e)re-broadcasting any of the Channel 7 Broadcasts (as defined in paragraph 12 of the Statement of Claim), or a substantial part thereof;

   (f)representing that its “Racing Retro” television program has the sponsorship or approval of any of the Applicants.’

2. TVN is the owner, with some exceptions, of copyright in authorised films of thoroughbred horse races and race meetings conducted anywhere in Victoria (“the Victorian TVN films”) and the exclusive licensee of authorised films of similar races and race meetings in Sydney, New South Wales (“the Sydney TVN films”).  The eighth applicant, Seven Network (Operations) Limited (“Seven Operations”) has been granted a sub-licence by TVN to broadcast in Australia on free-to-air television, certain of the Victorian TVN films and the Sydney TVN films.  As well, Seven Operations has been granted a licence by the Victoria Racing Club (“the VRC”) of which the ninth applicant, Rodney Milton Fitzroy, is the Chairman, to make television broadcasts of certain races and race meetings including the four meetings comprised in the VRC’s spring carnival known respectively as Derby Day, Melbourne Cup Day, Oaks Day and Stakes Day.  By agreement with Seven Operations and Seven Network Limited, the VRC is the owner of all copyright in, amongst other things, all television broadcasts and cinematographic films made by Seven Operations of the Melbourne Cup Carnival.

3. TVN exploits the Victorian TVN films and the Sydney TVN films in various ways including by broadcasting them “live” to its own TVN domestic channel which transmits to subscribers via Foxtel’s domestic pay television service and to its own TVN commercial channel which transmits a service to its own subscribers, including agencies of the Totalisator Agencies Board (“TAB”), hotels and clubs.  TVN also broadcasts “replays” of the Victorian TVN films and the Sydney TVN films on programs after the relevant race meetings, including a program known as “Racing Review”, which is broadcast on each of the TVN commercial channel and the TVN domestic channel at 9.30 am and again at 6.30 pm each Sunday. 

4. Seven Operations produces the images and sound content which it broadcasts “live” on free-to-air television on race days by “mixing” in various outside broadcasts (“OB”) facilities, including an OB van on the race-course, various elements such as visual coverage of the race itself, an audio “call” of the race, images from other parts of the course, comments and interviews by experts and other “on air” presenters employed by Seven Operations and advertisements.  The “on course” coverage is collected by Seven Operations’ cameras and microphones at various locations around the course.  As part of the mixing process, Seven Operations applies its “watermark” which results in a stylised “7” symbol appearing throughout the broadcast at the top right corner of each viewer’s screen.  The “mixing” process results in a barely perceptible delay between the running of the race and the reception of the broadcast on free-to-air television.

5. Previously, Sky held a licence from TVN to broadcast on Sky’s subscription television service certain races for which, as I understand the evidence, images and sound had been “mixed” by TVN in the way described at [4] above. That licence expired on or about 3 May 2005. However, it seems that, after that date, coverage of certain races at Flemington, Rose Hill and Warrnambool race-courses was obtained by Sky by way of “live feed” from TVN and broadcast as part of Sky’s “Racing Retro” program. Nothing seems to turn, for the purpose of the present application for an interlocutory injunction, on Sky’s use of that material.

6. On Sunday 2 October 2005, Sky reproduced, as part of its racing program “Racing Retro”, sound and video footage of four races from Randwick and three from Flemington which had been “mixed” by Seven Operations in the way described at [4] above. It seems that some material had been recorded by Sky from a Seven Operations broadcast or had been obtained, ostensibly with the permission of the Master Control Room of the third applicant Channel Seven Sydney Pty Ltd (“Seven Sydney”) by “live feed” from Telstra’s Television Operations Centre (“TOC”) in Sydney. Coverage of other races run after 2.30 pm on Saturday 1 October 2005 was probably obtained by recording of a broadcast by Seven Sydney or another Channel Seven broadcaster which had been received by a television receiver. All the coverage reproduced by Sky on 2 October 2005 bore the “7” watermark. Again, nothing seems to turn, for present purposes, on the different methods which may have been used by Sky to record that material. The races concerned took from 1 min 24 secs to 2 min 28 secs to run and the excerpts broadcast by Sky each occupied between 32 and 34 secs except for two of the races from Flemington where the initial frame of each excerpt was “frozen” for 23 and 29 secs respectively while members of Sky’s panel pointed out to viewers which horses should be watched. That delay extended the broadcast of the excerpts to 59 and 67 secs respectively. Shorter excerpts of the same coverage of the same races were repeated later in the program.

7. On 7 October 2005 the solicitors for TVN and Seven Network Limited and its subsidiaries (“Seven”) wrote to Sky complaining of the use of the material described at [6] above which, the letter asserted, was in breach of copyright and in contravention of s 52 and s 53(c) and (d) of the Trade Practices Act 1974 (Cth) (“the TPA”).  The letter went on to demand an undertaking from Sky to cease and desist from making, while TVN or Seven held the relevant copyright, any cinematograph film of a television broadcast or from broadcasting or re-broadcasting “the whole or any substantial part of any races conducted by the VRC, the AJC or any other Victorian thoroughbred racing club or the Sydney Turf Club”.  The letter also reserved the right to institute, without further notice, proceedings in this Court seeking injunctions, damages or an account of profits, corrective advertising and costs.

8. On Sunday 9 October 2005, Sky broadcast, again as part of its “Racing Retro” program, excerpts from the Seven broadcast of the meeting at the Caulfield Racecourse on 8 October which included the Caulfield Guineas.  Those excerpts, it is common ground, were made by recording a free-to-air broadcast which had been made by one of the Seven broadcasters.  The excerpts were of coverage occupying between 18 and 29 secs of four races which had elapsed running times of between 1 min 37 secs and 2 min 30 secs.  Shorter footage from each of the same excerpts was repeated later in the program. 

9. On Sunday 16 October, similar use was made by Sky of material recorded from the Seven broadcast on the previous day of the Caulfield Cup meeting.  The excerpts comprised footage of three races, including the Caulfield Cup, and had elapsed running times of between 20 and 28 secs.  No excerpts were repeated later in the program.

10. The applicants claim that the conduct of Sky on each of 2, 9 and 16 October 2005 involved an infringement of copyright in the Victorian TVN films and the Sydney TVN films and in Seven’s television broadcasts of each of the previous day’s race meetings. The infringement of copyright in the Victorian TVN films and the Sydney TVN films was said to have occurred because ownership of the copyright gave TVN the exclusive right in respect of each film to make a copy of it or a substantial part of it, cause it or a substantial part of it to be seen or head in public and to authorise the exercise by another of any of those exclusive rights. Reference was made in this context to s 10 of the Copyright Act 1968 (Cth) (“the Act”) which includes this definition of “cinematograph film”;

    ‘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.’

11. Section 86 describes the nature of the copyright which subsists in a cinematograph film by providing;

    ‘For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a cinematograph film, is the exclusive right to do all or any of the following acts: 

    (a)      to make a copy of the film; 

    (b)to cause the film, 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; 

    (c)       to communicate the film to the public.’

12. That unauthorised copying or publication of a substantial part of a cinematograph film amounts to infringement of copyright in the film is a consequence of s 14(1) of the Act, which provides;

    ‘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; and

    (b)a reference to a reproduction, adaptation or copy of a work shall be read as including a reference to a reproduction, adaptation or copy of a substantial part of the work, as the case may be.’

13. In TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2005) 216 ALR 631, Finkelstein J, with whom Sundberg J agreed, discussed, at 634 and following, the criteria to be taken into account in determining whether a part of a copyright work which has been reproduced by a presumptive infringer is “substantial”. His Honour indicated that, in some cases, the issue can be resolved by an aural or visual comparison of the copyright work with the allegedly infringing copy of what is said to be a substantial part. In other cases, his Honour said, the inquiry may turn on the economic significance of the part taken, the fairness or unfairness of the use by the alleged infringer and the extent to which that use has the capacity to reduce the value of the copyright work.

    Copyright in the television broadcasts

14. It is asserted on behalf of the applicants that Seven Operations is the owner of copyright in the television broadcasts which it makes of the Victorian and Metropolitan Sydney races and is the owner, or co-owner with TVN, of copyright in the cinematograph film of those race meetings which it makes as it “mixes” its coverage of the events in the manner described at [4] above.

15. “Television broadcast” is defined as follows in s 10 of the Act;

    ‘television broadcast means visual images broadcast by way of television, together with any sounds broadcast for reception along with those images.’

16. Section 87 of the Act describes, as follows, the nature of the rights conferred by copyright in a television broadcast or sound broadcast;

    ‘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 or communicate it to the public otherwise than by broadcasting it.’

17. The applicants contend that Sky’s copying of the excerpts from Seven’s broadcast of the races on 1, 8 and 15 October 2005 and its communication to the public of those excerpts by re-broadcasting them as part of “Racing Retro” on each of the following Sundays was an infringement of Seven’s copyright in the relevant television broadcasts.  It is also contended that Sky has threatened to commit similar infringements of Seven’s copyright in the television broadcasts which it proposes to make of each of the meetings comprised in the Melbourne Cup Carnival. 

18. On behalf of Sky, it has been contended that the evidence does not permit a finding that it has used, or intends to use, any part of a cinematograph film which has been made by Seven Operations in conjunction, or simultaneously, with the “mixing” of images and sounds in the course of facilitating or making television broadcasts of the relevant race meetings. Accordingly, even assuming that TVN and Seven had become the joint owners of copyright in such cinematograph films, neither of them has a cause of action against Sky because it has not copied or used a film. What is apparently accepted on behalf of Sky is that it has made a copy of part of the television broadcast of each race meeting made by Seven on each of 1, 8 and 15 October and has communicated to subscribers to the Foxtel pay television service excerpts from part of that copy being, effectively, the finishes of the relevant races. However, Counsel for Sky contend that whether that treatment amounts to taking a substantial part of the television broadcast has to be evaluated against the whole of each broadcast which occupied several hours on each of the Saturdays in question. Sky also relies on the fair dealing defence afforded by s 103B of the Act which provides;

    ‘Fair dealing for purpose of reporting news

    (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:

    (a)it is for the purpose of, or is associated with, the reporting of news in a newspaper, magazine or similar periodical and a sufficient acknowledgement of the first-mentioned audio-visual item is made; or

    (b)it is for the purpose of, or is associated with, the reporting of news by means of a communication or in a cinematograph film.’

    Is there a serious issue to be tried?

19. I am satisfied that the substantive application in this matter raises arguable issues to be tried. Those issues include whether continued use by Sky of excerpts from Seven’s television broadcasts of major race meetings would constitute an infringement of copyright subsisting in those television broadcasts. Related to that issue is whether Sky can avail itself of the defence of fair dealing on the basis that its use of the excerpts, in the manner in which it has occurred to date, is for the purpose of, or is associated with, the reporting of news within the meaning of s 103B. “News” is not defined in the Act but it seems to me to comprehend accounts of recent events of interest to the general public or, probably, a particular section of the general public. If the concept can legitimately be extended in the way just mentioned, the defence afforded by s 103B may be available in respect of a communication of an excerpt from a television broadcast of coverage of even a minor race at a meeting televised by Seven. That is because a recital or reproduction of events occurring in such a race would probably be regarded as “news” or newsworthy by persons with a special interest in racing like viewers of “Racing Retro” or subscribers to TVN’s “Racing Review”. On the other hand, editors of general news bulletins like those broadcast between 5.00pm and 7.30pm on metropolitan free-to-air channels in Melbourne and Sydney would probably regard only an excerpt from a television broadcast or film showing part of the main race of the day as warranting inclusion in such a bulletin. Even then, competing demands for time by other sporting events may result in only the main race of a major race meeting like the Melbourne Cup or Caulfield Cup achieving coverage, perhaps extended to showing the whole race from start to finish.

20. Another related issue which I considered to be seriously arguable is whether the use by Sky of excerpts about 20 to 30 secs in length, mainly of the finishes of feature races, involves the taking of a substantial part of the television broadcast in which Seven or the VRC or both have copyright. 

1. There is considerable force in the contention advanced on behalf of Sky that the issue of substantiality must be resolved in light of the whole “television broadcast”, as defined, in which copyright exists.  That, on the evidence, is a program extending over several hours including, not only footage of each race, but events before and after each race like the parade of horses from the mounting yard, their entry into the starting stalls, their return to scale and the weighing in and presentation of trophies.  As well, the television broadcast includes coverage of fashions, betting information, interviews with owners, trainers and jockeys and celebrities from other fields who are in attendance.  All of this material is interlaced with commentary from on-course experts and presenters retained by the television channel and, of course, commercials, usually of 30 or 60 seconds duration, each of which have been supplied by advertisers or sponsors whose fees defray the cost of producing and transmitting the program and, I assume, provide a margin of profit for the broadcaster. 

2. On the other hand, the actual races are at the “core” or “kernel” of the whole enterprise constituted by the television broadcast.  Without them, it is highly unlikely, if not inconceivable, that there would be any television broadcast even on a day like Melbourne Cup Day which, of all meetings, comes closest to a general event of popular culture or festivity.  Because of the interest generated in the outcome of wagers laid even, in an event like the Melbourne Cup, by once-a-year punters, the finish and result is usually the most important part of a race.  In rare cases, a fall or other mishap leading to the withdrawal or defeat of a fancied horse may be more newsworthy than the finish or the result. 

3. These counterbalancing considerations tend to the conclusion that, generally, excerpts of the kind copied by Sky for replay on “Racing Retro” are, qualitatively, the most substantial parts of the television broadcasts from which they are taken. On the other hand, the same quality which makes them “substantial” in that sense would appear to give them the character of “news” as that expression is used in s 103B.

4. On the present state of the evidence, I would be inclined to uphold the contention of Counsel for Sky that it does not permit a finding of a threat to infringe TVN’s copyright in any cinematograph film of a race meeting.  Even though the evidence indicates that such a film is brought into existence contemporaneously with the mixing and transmission of a television broadcast by Seven, it is not a copy of the film which is communicated by Sky.  What Sky communicates is part of its copy of part of Seven’s television broadcast of the race meeting.  The fact that Sky’s communication may appear to be identical with, or part of, a copy of a film produced more or less at the same time as the television broadcast is not to the point in identifying the work in which copyright has been presumptively infringed. 

   Balance of convenience

5. Despite the conclusion which I have just indicated as to the existence of a serious issue or issues to be tried, I have been persuaded, after anxiously weighing the balance of convenience and taking into account other discretionary factors, not to grant an interlocutory injunction as sought by the applicants.  Because the evidence is necessarily incomplete at this early stage of the proceedings and because I have not had the benefit of full argument on all of the considerations tending for and against the grant of injunctive relief, it is undesirable that I set out fully the factual findings or legal reasoning which might support the grant or refusal of relief.  I shall confine myself to a general outline of the salient features which have been influential in my arriving at that conclusion. 

   (i)       Nature of the serious question to be tried

6. It was pointed out by Woodward J (with whom Smithers and Sweeney JJ agreed) in Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472 that;

   ‘ … when it becomes necessary to consider the balance of convenience, it is, I believe, quite proper to continue to bear in mind the apparent strength of the applicants' case; the two legs of the test need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it. This view received support from the High Court in Beecham's case [Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622].

7. Similar considerations have led me to discount the existence of a serious issue or issues to be tried because of the presence in this case of equally serious issues which are capable, on the present state of the evidence, of being resolved at trial in Sky’s favour. They include the questions of whether what has been taken was a substantial part of Seven’s television broadcast and the availability of the fair dealing defence afforded by s 103B of the Act. Whether such a defence is available is a matter to be considered in determining whether there is a serious issue to be tried; see Nine Network Australia Pty Ltd v Australian Broadcasting Corporation (1999) 48 IPR 333.

   (ii)      Adequacy of damages as a remedy.

8. It has been submitted on behalf of the applicants that Seven will suffer irreparable damage if Sky continues to communicate in the “Racing Retro” format, excerpts from Seven’s television broadcasts of major race meetings.  Counsel point to the fact that Seven has invested significant time, effort and expense in creating the broadcasts and building its reputation as a free-to-air provider of coverage of horse racing.  However, it is by no means demonstrable that those assets will be eroded by a continuation of Sky’s activities.  My perception of the limited amount of material which I have been able to review for the purposes of this interlocutory application suggests that it is the immediacy or “live” aspect of Seven’s television broadcast which makes it attractive to a wide general public as well as to racing enthusiasts.  As a result, it generates support from advertisers concerned to reach a large and demographically widespread audience.  By contrast, “Racing Retro” presents as a program of review, analysis and prediction for racing afficionados.  Because at least 18 hours elapse between the running of any race and the first broadcast of “Racing Retro”, the value of excerpts from “live” television broadcasts of those races as “news” to the general public is severely limited if it has not evaporated altogether. 

9. On the other hand, as explained at [23] and [28] above, the material may retain the character of specialised news in the eyes of racing enthusiasts in a way analogous to a recital of recent events in a weekly print publication of analysis and review or a specialist academic or technical journal.  These features suggest that the present use of footage of actual races on “Racing Retro” is unlikely adversely to affect the reputational revenue which Seven derives from its television broadcasts of major race meetings.  Nor am I persuaded that the continued transmission for the immediate future of “Racing Retro” in its present format will conduce to the erroneous view that Seven has authorised, or permitted, excerpts from its television broadcasts to be reproduced by Sky.  I consider that the publicity attracted by the present proceedings will adequately guard against a general formation of any such view.  If I be wrong about that, application can be made for an order requiring Sky to communicate a disclaimer of authority or permission to use footage baring the Seven watermark. 

10. Similar considerations apply to the suggestion that failure to obtain an interlocutory injunction will impair the value to the VRC of its existing contract with Seven and TVN.  I presume that those contracts will remain in force according to their terms for the duration of the present Melbourne Cup Carnival.  It is by no means clear that the VRC will receive lower bids in the future for the exclusive right to make “live” television broadcasts of feature race meetings even if it be ultimately held that Sky is entitled to continue to take and use, on “Racing Retro”, excerpts from those television broadcasts of feature races.  I observe parenthetically that similar use of such excerpts is made, apparently without objection by Seven, by its free-to-air competitors in their news bulletins.  By joining in the institution and prosecution of the present proceedings, the VRC has, I consider, effectively negated any perception that it has failed to enforce its rights or has acted in bad faith in its relations with TVN or Seven.

11. The evidence to date is silent on the question of whether a generally accepted value or price can be ascribed to archival footage of races or other sporting events for use, after the event, in programs like “Racing Retro”.  I am not prepared to assume that, in an industry as commercially sophisticated as the broadcasting of free-to-air and subscription television, such ascription of value or price is impossible or impracticable.  On the other hand, I perceive that the Court would encounter real difficulty in seeking to quantify the damages which the applicants should be required to pay pursuant to the usual undertaking if it were later held that the interlocutory injunction which they seek should not have been granted.  The damage which would be suffered by Sky on that hypothesis would be the diminution in value to it of “Racing Retro” if it were compelled to depart from its preferred format and confine the program to interviews and panel discussions without the focus provided by excerpts of footage of actual races.  There would be an obvious difficulty in quantifying, in monetary terms, damage measured in that way.

    (iii)     Preservation of the status quo

12. It has been contended on behalf of the applicants that an interlocutory injunction should go to preserve the status quo which prevailed between 8 May and 2 October 2005 when no footage of Victorian or Metropolitan Sydney races were shown on “Racing Retro”.  However, that omission does not seem to have been based on any implied acceptance that the copyright owned by one or other of the applicants precludes any use at all by Sky (even to the extent which occurs in free-to-air news bulletins on rival television channels) of footage of actual races.  If the preservation of any status quo is to be influential for present interlocutory purposes, it should, I consider, be that which allows to Sky a similar degree of use of footage of actual races of which it availed itself between 1 and 15 October 2005.

    (iv)      Public interest

13. I have already referred to the apparently unlicensed use by other television channels of excerpts of actual races from Seven’s television broadcasts of feature meetings.  That apparently occurs without objection by Seven or any other owner of copyright in the television broadcast.  A similar acquiescence seems to be reciprocated when other channels’ footage of events like football and cricket matches is used to a limited extent by their rivals.  The applicants’ different reaction to the alleged infringement by Sky raises the inference that it is prompted more by perceptions that Sky’s “Racing Retro” is in direct competition with TVN’s “Racing Review” than by a concern to preserve intact an exclusive right to communicate every piece of footage of feature races at the principal race meetings.  To grant an interlocutory injunction to preserve or enhance TVN’s competitive advantage assuming, as is by no means clear, that it is an owner or licensee of the relevant copyright, would be to dilute the facility for viewers to make a choice between programs which are broadly similar in format.  That would be, at least arguably, contrary to the public interest, especially when it is remembered that viewing of “Racing Review” requires an additional fee not demanded of ordinary Foxtel subscribers who elect to receive Sky’s “Racing Retro”.

    Conclusion

14. For the reasons which I have endeavoured to explain, I have not been persuaded that the balance of convenience favours the grant of an interlocutory injunction in the terms sought by the applicants.  I have been influenced in coming to that conclusion by the fact that, if the parties wish, the Court can give them a reasonably speedy trial of the substantive issues including whether there should be a final injunction in the same terms.  I shall therefore refuse the application for an interlocutory injunction but order that, subject to any further or other order of the docket Judge, there be a speedy trial of the action.  There will be a first directions hearing at 9.30 am on 11 November 2005 and the costs of all parties of the interlocutory proceedings will be costs in the cause.  I shall reserve liberty to any party to apply.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             28 October 2005

Counsel for the Applicants:	Mr R Macaw QC with Mr A J Ryan and Ms M A Tran
Solicitor for the Applicants:	Clayton Utz
Counsel for the Respondent:	Mr R Cobden SC with Ms K Richardson
Solicitor for the Respondent:	Allens Arthur Robinson
Date of Hearing:	21 October 2005
Date of Judgment:	28 October 2005