Casenote: The Panel Decision and the Substantial Problem of Television Broadcast Copyright

Brendan Plant and Niranjan Arasaratnam review the High Court’s recent decision in the ‘Panel’ case, and provide some comment on its implications for industry.

he High Court1 has overturned THE TRIAL JUDGE of another channel’s television footage the decision of the Full Federal and re-broadcasting any of the actual Court,2 which held that the At first instance,3 Justice Conti images and sounds of that broadcast Towner of the copyright in a televisionconsidered two main issues: first, the is an infringement of copyright. The broadcast had the exclusive right to scope of the copyright granted to Court also held that there was no reproduce any of the images and television broadcasts as ‘Other Subject requirement that the visual images accompanying audio broadcast. Matter’ under Part IV of the Act; and, must constitute a substantial part of second, the application of the fair On one hand, the High Court’s decision the original broadcast. dealing defence. will be welcomed by broadcasters, In reaching this conclusion, the Court editors, producers and others within the Justice Conti held that, in order to drew a distinction between a television and movie industries infringe television broadcast copyright, cinematograph film and a television because, by narrowing the scope of the it was necessary to copy or broadcast. The definition of broadcast right, the threshold for re-broadcast a ‘substantial part’ of that cinematograph film in the Act is an infringement seems to have been subject matter. In relation to television ‘aggregate of visual images... raised. broadcasts, the subject matter was a capable... of being shown as a moving program or, in certain cases, a segment However, while the majority of the picture’. In contrast, the Full Court of a program with a self-contained High Court found that television considered a television broadcast to be theme. His Honour treated television programs and individual a sequence of still images with advertisements as discrete television advertisements both answer the accompanying sounds. Therefore, the broadcasts worthy of protection. description of a ‘television broadcast’ Court held that copyright can subsist for the purpose of the Copyright Act Justice Conti concluded that Network in each and every still image that is 1968 (Cth) (the Act), it left open the Ten had not infringed copyright in transmitted or capable of being question of whether a particular Channel Nine’s programs because the observed as a separate image on a segment of a program may also excerpts taken were not substantial in television screen. constitute ‘a television broadcast’. It terms of quality or quantity and were Having found that Network Ten’s also gave no guidance on how a not taken for a commercial purpose. actions had infringed Channel Nine’s ‘substantial part’ of a television Although not strictly necessary given copyright, the Full Court went on to broadcast is to be determined for the his findings on the scope of the consider the fair dealing defences purpose of infringement. copyright, Justice Conti proceeded to argued by Ten. Although the Court address the availability of fair dealing broadly agreed on the principles that BACKGROUND defences in these circumstances. His emerged from authorities involving the Honour considered that 11 out of the Channel Nine commenced copyright application of the fair dealing 20 broadcasts were fair dealings for infringement proceedings in the defences,4 the three Full Court judges the purpose of criticism and review or Federal Court against Network Ten (Justices Hely, Sundberg and under the Act for broadcasting short for the purpose of reporting news. Finkelstein) reached different conclusions as to whether or not the excerpts of Channel Nine programs on THE FULL FEDERAL COURT its television show, The Panel. fair dealing defences were available to Network Ten defended the action on The Full Court of the Federal Court Ten in relation to some of the re­ the basis that it had not re-broadcast a disagreed with Justice Conti’s decision, broadcast segments. substantial part of Nine’s broadcasts finding unanimously that Network Ten Network Ten appealed to the High or, if it had, that its broadcast of the had infringed the copyright Channel Court, arguing that the Full Federal segments constituted ‘fair dealing’ Nine held in its television broadcasts. Court had misinterpreted the term ‘a under the Act. The Full Court held that making videos television broadcast’ in the Act.

Page 14 Communications Law Bulletin, Vol 23 No 1 2004 HIGH COURT: MAJORITY The High Court remitted the case to ______COMMENTS______DECISION the Full Federal Court for redetermination of whether, in light of The High Court’s decision in The The High Court, by a three to two its findings on the scope of the Panel case may be welcomed for majority, overturned the Full Federal television broadcast copyright, the having addressed some of the key Court’s decision. The High Court held excerpts shown by Ten were criticisms directed at the Full Federal that a single image appearing on a substantial parts of Channel Nine’s Court judgment.8 In particular, by television screen with accompanying programs contrary to Justice Conti’s raising the infringement threshold, the audio does not constitute a television findings. High Court has ensured that television broadcast. The majority found that, broadcasters are no longer privileged MINORITY DECISIONS in this case, the ‘television broadcasts’ with a greater degree of copyright were the 20 separate Channel Nine In separate judgments, Justices Kirby protection than other copyright programs from which the excerpts and Callinan both agreed with the Full holders, including the producers of shown by Ten had been taken. The Federal Court’s broad construction of other Part IV subject matter (most Court described these as broadcasts notably films) and the creators of a “put out to the public, the object of the ‘a television broadcast’ as each single visual image and the accompanying broadcast’s underlying works. activity of broadcasting, as discrete Furthermore, the High Court decision periods of broadcasting identified and sound broadcast. Both minority judgments gave priority to the text of reaffirms the utility of the substantial promoted by a title... which would part test within the television broadcast attract the attention of the public”.5 the legislation over the ancillary materials, and maintained that the copyright regime, thus restoring a key In coming to this conclusion, the wording of the Act established the mechanism by which the courts have majority criticised the Full Court’s limits to a purposive approach to traditionally sought to resolve approach for giving an artificial statutory construction favoured by the copyright law’s fundamental tension meaning to the terms of the Act and majority. between the private interest in for privileging the rights of television protection and the public interest in broadcasters over those of other Furthermore, the minority focused access. copyright holders. The majority’s closely on the nature of the interests to But for those in the broadcasting interpretation of the Act drew on the be protected by the broadcast industries, the High Court’s decision historical and legislative context copyright. Referring to the well- does not offer any real comfort beyond surrounding the first grant of broadcast known test that ‘what is worth copying confirming that broadcast copyright copyright in both Australia and the is prima facie worth protecting’, subsists in discrete television programs United Kingdom and pointed to the use Justices Kirby and Callinan argued and advertisements. Indeed, by its of the term ‘program’ in other that, in the highly competitive and reliance on an unresolved definition of legislation applicable to the commercialised broadcasting industry, ‘television broadcast’, the High Court broadcasting industry. broadcasters have a strong interest in re-broadcasting snippets of footage has allowed an unfortunate degree of The High Court agreed with Justice from their competitors and that the uncertainty to survive in relation to the Conti that television advertisements are broadcast copyright should protect subject matter of this form of discrete television broadcasts. against this conduct. copyright. For broadcasters wishing However, the Court declined to decide to reproduce parts of television whether an individual segment within The minority judges recognised that programs for their own use, any a television program qualifies as ‘a their broad interpretation of broadcast uncertainty as to whether their actions television broadcast’ in which copyright gave a stronger degree of might be in breach of the Copyright copyright subsists. Indeed, the Court’s protection to broadcasters than other Act is compounded by the subjectivity interpretation of ‘a television copyright holders. While Justice Kirby involved in the court’s determination broadcast’ remains, by its own was almost apologetic that his analysis of whether the use constitutes fair admission, imprecise; the majority led to such a result, Justice Callinan dealing. As the history of The Panel noted that “there can be no absolute reasoned that the broadcast copyright case itself reveals, the courts have precision as to what in any of an was intended to be a unique form of assessed the fair dealing defence in a infinite possibility of circumstances copyright, and that a greater level of highly erratic fashion. It seems will constitute a television broadcast”.6 protection was justified in the unlikely that broadcasters will risk However, the majority indicated that competitive and ‘nakedly commercial using excerpts of other broadcasters’ it would not necessarily consider context’ of broadcasting, in which programming on such an unreliable separate segments, items or ‘stories’ ‘expansive infrastructures, fees, and uncertain basis, especially when within a prime-time news broadcast as techniques and resources are consideration is given to the high costs separate ‘television broadcasts’ in required’.7 involved in the television industry. which copyright subsists.

Communications Law Bulletin, Vol 23 No 1 2004 Page 15 On this view, interests beyond the defence in light of the High Court’s 2 TCN Channel Nine Pty Ltd v Network Ten Pty broadcasting industry may be findings. Given that the substantial Ltd (2002) 118 FCR 417. 3 TCN Channel Nine Pty Ltd v Network Ten Pty concerned that the uncertainty part test is underdeveloped in the Ltd (2001) 108 FCR 235. produced by the High Court’s decision context of Part IV of the Act, there 4 See eg Nine Network Australia Pty Ltd v will exert an unfortunate stifling effect remains the distinct possibility that Australian Broadcasting Corporation (1999) 48 IPR 333 at 340, Time Warner Entertainment Co on the televised public domain, as there will be another series of appeals Ltd v Channel 4 Television Corporation PLC various forms of comment and before the matter is ultimately (1993) 28 IPR 459 at 468 and Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142 at criticism which make use of other resolved. par 61. broadcasters’ content may disappear 5 Above, n 1 at [75], from our TV screens.9 Brendan Plant is a Law Graduate in the Sydney office of Allens Arthur 6 Ibid. The Panel case currently awaits Robinson, and Niranjan Arasaratnam 7 Above, n 1 at [155], 8 See, for example, Michael Handler, The Panel reconsideration by the Full Federal is a partner in the firm's Hong Kong office. Case and Television Broadcast Copyright’ (2003) Court, which will determine the 25 SydLR 390. application of the substantial part test 1 Network Ten Pty Limited vTCN Channel Nine 9 See Melissa de Zwart, 'Seriously entertaining: Pty Limited [2004] HCA14. The Panel and the future of fair dealing’ (2003) 8 and the availability of the fair dealing Media & Arts LR1. Knowledge Cycles of Digital Television in Australia In this edited version of her paper presented at the Communications Research Forum 2003, Cate Dowd looks at the development of Australian digital television and some future directions.

nformation about Australia’s digital of developments led to a broken contract change, via text agents, could also be television infrastructure and a for transmission services, due to claims reviewed and include reflections on the limited knowledge of reception of unprofitable investments by the phenomena of technological Isystems may have impacted on the international company involved. The convergence. operational plans for Australia’s knowledge base for early-development The agents of change for digital transmission infrastructure also remain decisions. The timely reach of television include major technical entangled in access issues for detailed information for knowledge formation standards that have been designed as information. remains important to the progress of open and evolutionary standards. digital television. The shortfalls of Understanding the early communicative Australian broadcasters, content implementation suggest a need for a transactions for change is as important developers, consumers and model that represents digital television as the identification of financial manufacturers are all influenced by the as an evolving enterprise of diverse transactions. Important questions have cycles of knowledge in the development agents and complex transactions. been raised by the approaches so far. process. The Multimedia Home The base for a theoretical model might First, how can transmission Platform standard for the set-top box include ‘knowledge cycles and infrastructure be reinstated as a public (commonly referred to as the MHP) will communicative transactions’1 as a asset? Secondly, will the Australian ultimately involve transactions with means of understanding digital Government succumb to international other agents for functionality, such as television as a form of major corporate interests with the anticipated metadata standards. These entities need technological change. It might include sale of spectrum for broadcasting? to be represented in a model of transactions with other distribution ideas, motivation and agents for change The technical knowledge of digital as an extension of conventional television involves many entities that systems, such as mobile phones as a set information analysis and design. An stand against legislative requirements of digital systems. ‘eco-techno’ system model2 would for broadcasters, including a quota for THE EMERGENCE OF DIGITAL represent technological change as an HDTV content that occupies the whole TELEVISION IN AUSTRALIA ecology beyond static architectures, bandwidth of a digital channel. The entities and agents. Such a model might potential of a channel is actually more The digital transmission systems and assist understanding and direct policy sophisticated than this reduction, standards for reception devices in a time of review, which otherwise suggesting that policy needs to be developed by the DBV3 based in appears likely to be marked by a informed by deeper knowledge of the Geneva are major areas of development commodity approach. technologies, beyond market models for Australian digital television. These The sale of Australia’s national produced by a productivity agent of a entities involve complex and dynamic transmission network in the early stages government. The motivation behind transactions across organisations and

Page 16 Communications Law Bulletin, Vol 23 No 1 2004