“Television broadcast” defined by copyright case in Australian courts

Australia's largest TV channels have taken a debate over copyright infringement all the way to the High Court.

In the recent decision Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14 (11 March 2004) the High Court of Australia was required to determine, in an age of continuous broadcasting, what constitutes a “television broadcast” for the purpose of copyright infringement under the Copyright Act 1968 (Cth) (the “Act').

Under the Act, a television station's broadcasts are protected. If someone, other than the copyright owner, reproduces all or a “substantial part” of a broadcast they will be liable for a copyright infringement. In this instance Nine alleged that Ten infringed its copyright when Ten used 20 extracts from various programmes previously broadcast by Nine. The extracts which aired in the Ten programme “The Panel” ranged from eight to 48 seconds in length.

At trial, Conti J of the Federal Court found Ten had not infringed Nine's copyright in the relevant broadcasts – but on appeal the Full Federal Court overturned Conti J's decision. They held that a singular visual image shown on television and accompanying sound constituted a broadcast in which copyright could subsist.

The High Court of Australia, however, disagreed with the Full Federal Court. In the High Court, Ten successfully argued that the Full Federal Court has misinterpreted the meaning of a “television broadcast” in the context of a copyright infringement. Ten alleged that the approach of the Full Federal Court ignored the requirement under the Act that a copyright infringement of a broadcast required reproduction of all or a “substantial part” of the work.

The High Court upheld Ten's appeal (by a 3:2 majority). The Court found that the approach of the Full Federal Court ignored the question of whether a “substantial part” of the broadcast had been reproduced giving a “very artificial meaning” to the term “television broadcast”. Furthermore, this placed broadcasters in a privileged position compared to other owners of material whose works are protected under the Act and may have been used in the production of the television broadcast.

The majority found that, while “there can be no absolute precision as to what if any of the infinite possibility of circumstances will constitute a ‘television broadcast'", they agreed with the trial judge that programmes and advertisements constituted ‘broadcasts' for the purposes of the Act.

Although Ten were successful in overturning the Full Federal Court's expansive definition of “television broadcast”, the case has been remitted to the Full Federal Court for determination of the remaining issues. In particular the Full Federal Court is required to determine whether the eight to 42 second segments of the programmes which were used by Ten constitute a “substantial part” of each of Nine's broadcast in which copyright resides. In each case this will be determined as a matter of fact and degree.

Enquiries and information

For more information on these new criminal offences, please email or call Garry Williams on 64 9 916 8661.