02 September 2005
Key Points:
Copyright infringement often turns on whether a substantial part of the work has been taken. It's still not clear what a substantial part of a television broadcast is, despite four court cases.
In the latest instalment of the Panel case, TCN Channel Nine Pty Limited v Network Ten Pty Limited (No 2) [2005] FCAFC 53, the Full Federal Court has been asked to apply the High Court's findings on copyright infringement of broadcasts (see our Alert on that decision here). At trial, Ten had succeeded in alleging that its use of nine excerpts taken from Nine's broadcasts came within the "fair dealing" defence under the Copyright Act 1968, in respect of reporting the news, a finding undisturbed in subsequent cases. That left 11 snippets of Nine's broadcasts which Ten used and might have infringed Nine's copyright in the broadcasts in question.
The Full Court held that Nine's copyright had been infringed in six of the 11 broadcasts, applying the test of substantiality discussed below.
What did "The Panel" do?
In "The Panel", a television show broadcast by Ten, a panel of satirists saw and made mocking commentary regarding the subjects of film clips of the week's events, such as a short clip of the Prime Minister singing "Happy Birthday to You" at Don Bradman's birthday party.
Where did those clips come from? As part of making "The Panel", Ten recorded Nine's off-air or satellite signal onto videotape. The segments used by "The Panel" were copied from this videotape onto a further tape for eventual airing during the show.
Nine argued that each image or each short news segment was a "substantial part" of its broadcast, because it was a discrete component which was chosen for its newsworthiness, and hence taking of even that small clip amounted to a copyright infringement. It also argued that mocking or satirical use of the material could not be regarded as "reporting the news".
Ten argued that, as it was not taking a few seconds of the original Nine programs, such as Nine's news broadcast, and its was doing so to report on Nine's coverage and the events portrayed, this was not to be regarded as a "substantial part" and was to be regarded as reporting the news, even if satirically.
The High Court had held that the copyright in a broadcast does not protect the individual images and accompanying sounds. As to what constitutes a "broadcast" the High Court said, "There can be no absolute precision as to what in any of an infinite possibility of circumstances will constitute 'a television broadcast'." The Nine programs however did constitute a television broadcast as they were put out to the public as discrete periods of broadcasting identified and promoted by a title, such as The Today Show, Nightline, Wide World of Sports, which would attract the public's attention.
With this guidance, the Full Federal Court had to grapple with the basic problem - what is a substantial part, and had Ten taken it?
What is substantiality - and does economic harm matter?
At trial, the judge had formulated a test which used a primarily quantitative approach, which also considered any harm to the copyright owner's commercial interest in the program as a whole and the commercial purpose of the use. In his analysis, he had focussed upon one issue: what economic harm did Nine suffer as a result of Ten's use of its material?
While acknowledging that substantiality is an elusive concept, the appeal court held the trial judge erred in his conception and application of it to this case. After reviewing the case law, the Full Court held that
"the test of substantiality – that is the notion of quality – is not confined to an examination of the intrinsic elements of the plaintiff's work. The test of substantiality may involve a broader enquiry, an enquiry which encompasses the context of the taking. The key ideas here are first that copyright is granted to protect the owner's financial interest in his property. The second idea links financial harm to the rationale of unfair use or the injurious appropriation of the plaintiff's skill and labour. The level of financial harm may indicate that the use of that labour is unfair."
The Full Court repeated the long accepted principle that correct place to start in determining both copying (which was not in question here) and substantiality is to look at the part taken, compare it with the copyright material from which it is taken, and ask whether it is possible to conclude from that comparison whether the part taken is a "substantial part" of the original material. The Full Court attempted to illuminate the question by referring to numerous questions derived from prior decisions, particularly of the High Court, many extraordinarily obtuse:
If what has been taken does not meet any of those descriptions, according to the Full Court, that will often be the end of the inquiry. There will, however, be borderline cases where an inquiry based on a visual comparison will not yield a result. In these borderline cases, factors such as the plaintiff's financial interest as well as the defendant's purpose become relevant to resolving the issue.
The trial judge also held that "matters of technical significance… to the broadcast may also be relevant", which encompass the "technical considerations associated with the infrastructure of production". The Full Court held that if he meant that it is either necessary or permissible to inquire into the means by which a programme is created and broadcast, then he is wrong.
Unresolved problem
The High Court discussed whether a distinct segment of a program could be a "broadcast" for the purposes of the Copyright Act, but left that problem to be solved in a more suitable case. Nine argued in the Full Federal Court that the High Court had in fact answered this, and in its favour. The Full Federal Court disagreed, saying that the matter was still open and that it need not be answered in this case, which could be determined without an answer. Given the conventional principles of copyright infringement referred to by the Full Court, it seems incomprehensible that it could not decide what the original copyright material was against which it was making the comparison needed to come to its conclusion!
