The High Court has upheld Ten's appeal regarding what is a 'television broadcast' for the purpose of determining copyright infringement under the Copyright Act. The decision means that a broadcast for copyright infringement purposes is more than a single image.
Nine alleged that Ten had infringed its copyright in a television broadcast by replaying extracts (ranging from eight to 42 seconds in length) from various Nine programs on Ten's show, 'The Panel'.
At trial, a single judge of the Federal Court found in favour of Ten.
The Full Federal Court upheld Nine's appeal and found that copyright would be infringed whenever any single image contained within a television broadcast was reproduced, regardless of whether that image was a substantial part of the broadcast. This is in contrast to the level of protection given to other copyright works and other subject matter, the entirety or a substantial part of which need to be taken.
No special protection for television broadcasts
The High Court (by a 3:2 majority) rejected the Full Federal Court's approach.
The majority described the Full Federal Court's reasoning as giving broadcasters 'a privileged position' compared to other copyright owners.
The High Court held that television broadcasts have the same level of protection under the Copyright Act as other copyright material. This means, as for other copyright material, that all or a substantial part of the television broadcast must be taken to infringe copyright.
What is a 'television broadcast'?
It is important to identify what a broadcast is. Is it a single image shown on TV (as Nine had argued)? Is it no less than 24 hours of continuous broadcasting (as Ten had argued)? Or is it a television program?
The High Court said that 'there can be no absolute precision as to what in any of an infinite possibility of circumstances will constitute a television broadcast'. The High Court noted that:
the programs identified by Nine (such as 'The Today Show' and 'Nightline') are each a television broadcast—they were put out to the public (which is the object of the activity of broadcasting) and were discrete periods of broadcasting identified and promoted by a title intended to attract the attention of the public
television advertisements should be treated as discrete television broadcasts
while a prime time news broadcast may include various segments, items or stories, this does not necessarily mean that each of these constitutes a television broadcast.
Stay tuned—there's more to come
The High Court's decision did not address a number of issues:
Did Ten copy a substantial part of Nine's broadcasts?
This issue has been remitted to the Federal Court to determine.
Can a segment of a program constitute a television program?
The High Court said it would consider this when a particular case arises.
What about the fair dealing defences (in particular, copying a broadcast for the purposes of criticism or review, or reporting news)?
The High Court was not asked to consider these.
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