Now that's entertainment!

by Shail Singh and Mark Chivers

Recently the Full Federal Court was required to consider the nature of copyright in a television broadcast and whether the copying and re-broadcasting of a few seconds of various television programs resulted in copyright infringement of the original broadcast. The Full Court unanimously held that the relevant subject matter of copyright in a television broadcast is not the transmission of the television broadcast itself but rather it is the content of each and every transmission that is broadcast. Importantly, the Full Court commented that subject to statutory exceptions and fair dealing, the exclusive rights of a copyright owner in a television broadcast are protected to the extent that the photographing, copying and re-broadcasting of a single unaltered image (being still or visual) of a television broadcast could result in copyright infringement.

TCN Channel Nine Pty Ltd v Network Ten Pty Limited [2002] FCAFC 146 (22 May 2002)

Facts

The Channel 10 television program, "The Panel", used a number of excerpts of certain Channel 9 television broadcasts (the "Panel Segments"). The various Panel Segments had previously been broadcast by Channel 9 and ranged between 8 seconds and 42 seconds in duration and included such footage as Prime Minister John Howard singing Happy Birthday for Sir Donald Bradman on the Channel 9 "Midday Show".

At first instance, the primary judge held that the subject matter of copyright in a television broadcast subsists in a television programme, or if a particular television programme is able to be subdivided by reason of the existence of self-contained themes then copyright existed in each of the segments of the television programme. The primary judge then turned to the question of infringement and rejected Channel 9's contention that Channel 10 had:

1. Re-broadcast all or a substantial part of Channel 9's television broadcast and infringed the copyright conferred on Channel 9 by s 87(c) of the Copyright Act 1968 (Cth) ("the Act"); and

2. Made a cinematographic film and copied all or a substantial part of Channel 9's television broadcast and infringed the copyright conferred on Channel 9 by s 87(a) of the Act,

on the basis that the re-broadcasting or copying of the Panel Segments was not of all or a substantial part of the Channel 9 television programmes or segments of television programmes which the short Panel Segments were a part.

Notwithstanding the primary judge's ruling against finding any infringement by Channel 10, the issue as to whether Channel 10 had dealt with each of the Panel Segments in a manner that was fair and in the public interest was considered. After a review of The Panel television broadcasts in which the Panel Segments appeared, the primary judge concluded that in accordance with ss 103A and 103B of the Act, Channel 10 had copied and re-broadcast a certain number of the Panel Segments for the purposes of criticism, review or for reporting of the news (the "Fair Dealing Exceptions"). In respect of the remaining Panel Segments, the primary judge found that Channel 10 had used these Panel Segments for no purpose other than for entertainment and accordingly the Fair Dealing Exceptions would not have applied.

The Appeal and Findings

On appeal Channel 9 contended that the primary judge had erred in finding that Channel 10 had not infringed Channel 9's copyright in the Panel Segments as Channel 10 had not copied or re-broadcast all or a substantial part of Channel 9's initial television broadcasts in which the Panel Segments had appeared.

Whilst the traditional test for copyright infringement in s 14(1) of the Act is whether the entire copyright work, or a substantial portion of the work has been copied, the appeal turned on the proper characterisation of a television broadcast as a copyright work and the identification of the corresponding exclusive rights that exist in such a work.

If, as Channel 10 contended, the relevant copyright work was that which was transmitted in any twenty-four hour period of broadcasting, then the use made by Channel 10 of a few minutes of Channel 9's round-the-clock broadcast was not an infringement because it would not have been a copying of the entire or a substantial portion of the copyright work.

If however, as Channel 9 contended, copyright existed in each individual image and accompanying sound making up the television broadcast, Channel 10's use of the Panel Segments was an infringement.

The Full Court adopted the latter contention, and interpreted s 10 of the Act as defining a television broadcast in reference to the visual images and accompanying sounds broadcast and not in reference to the material transmission of the broadcast itself. Unlike other works and subject matter protected under Part IV of the Act, the Full Court found that a television broadcast is ephemeral in nature in that the Act imposed no requirement for a television broadcast to be reduced into a material form or fixed in order to attract copyright protection.

Turning to the issue of infringement the Full Court concluded that any requirement for substantiality in s 14(1) of the Act must be interpreted in light of s 25 (4) which operates as a deeming provision providing that:-

"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 such a film, or a reproduction of a photograph, of any of those images."

and has the indirect effect of clarifying any substantiality requirement and defining the exclusive rights in relation to a television broadcast, which is that a cinematograph film or photograph of any of the individual visual images comprised in a television broadcast is an exclusive right of the copyright owner (subject to statutory exceptions and fair dealing). In doing so the Full Court rejected the primary judges' findings that the operation of s 25(4) is qualified by the requirement of substantiality in s 14(1) to the extent that copyright infringement would only occur where there has been a cinematograph film or a photograph of a number of individual visual images and each of these images are copied or re-broadcast in sequence so as to make up a substantial part of the television broadcast.

The Full Court left open and did not find it necessary to expand on its observation that issues of substantiality and therefore a limited application of s 14(1) of the Act, may arise where a television broadcast consists of visual images and sounds, but the re-broadcast is of one, rather than the other, or if the re-broadcast is for a fleeting "insubstantial" moment or is of cropped, distorted or incomplete images or sounds. Any further academic discussion on this point was brushed aside by the Full Court, citing that the outcome of the appeal did not depend on the television broadcast of a single image and accompanying sound and it was clear that the Panel Segments comprised a plurality of images and sounds.

Accordingly, the Full Court held that use by Channel 10 of the Panel Segments infringed Channel 9's copyright in them.

Whilst noting that the primary judge had already considered the issue, and with an expressed reservation and reluctance to overturn the primary judge's findings, the Full Federal Court was also asked to consider the application of the Fair Dealing Exceptions to each of the Panel Segments. Channel 9 submitted that Channel 10's use of the Panel Segments was unfair in that it was purely for entertainment, provision of program content and to achieve ratings. The Full Court rejected this contention noting that Channel 10 was not disentitled to rely on the Fair Dealing Exceptions simply because the fair use of the Panel Segments in criticism, review or reporting of the news was entertaining or in fact humorous. Mindful of its obligations as an appellate court in reviewing evidentiary decisions of a primary judge, the majority upheld all but three of the primary judge's initial decisions with regard to the availability of the Fair Dealing Exceptions for each re-broadcast of the Panel Segments on the basis that they would not overturn the primary judge's initial decisions unless convinced that the such decisions were clearly unsubstantiated and wrong.

Conclusions

The approach adopted by the Full Court in this case means that even though there are thousands of transmissions in any given day of television broadcasting, each individual transmission in a television broadcast is protected, so that even use, by way of copy or re-broadcast of one unaltered visual image of a television broadcast, in any form of media, may amount to copyright infringement. In light of this interpretation, television and internet broadcasters as well as the print media are put on notice to take care, or arrange a licence with the copyright owner prior to reproducing any visual image of a television broadcast in any form and are urged not to rely on the fact that only a small portion of a television broadcast is re-broadcast to avoid copyright infringement. Advice should also be obtained as to whether the Fair Dealing Exceptions apply.

Given that the issue of the limited application of substantiality in s 14(1) remains unresolved and yet to be tested, the brief comments made by the Full Court should not be construed as granting a green light to the broadcasting or print media wishing to utilize altered, distorted or cropped visual images or sounds from a television broadcast without any reasonable intention of fair dealing, otherwise such operators could quickly find themselves in court.


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