Although the decision in The Panel case might be good news for Australian satirists, it fails to fulfil its promise of giving guidance on how much of each other's footage broadcasters can use without infringing copyright in the broadcast.
Making the Panel
As part of making "The Panel", Network Ten recorded Nine's off-air or satellite signal onto videotape. The segments used by "The Panel" were copied from this videotape onto a second one for eventual broadcast by Network Ten.
Network Ten argued that, as it was not taking the whole or a substantial part of the original Nine programs, there was no infringement of the copyright in a television broadcast (the key rights in this case being Nine's right to make a cinematograph film of the broadcast and its right to rebroadcast its own broadcasts).
The Full Federal Court had held that the "broadcast" in which Nine owned copyright was the individual images and accompanying sounds that made up Nine's broadcasts. This meant that the idea of substantiality would not be an issue in determining infringement - taking only one image would infringe Nine's broadcast copyright.
Although this decision gave certainty, it potentially gave owners of broadcast copyright greater rights than owners of other forms of copyright. For example, to infringe the copyright in a book requires copying all or a substantial part of the book; copying individual words, sentences or even pages may not be enough to infringe.
The High Court overturned this judgment and held that broadcast copyright 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, and the like, which would attract the public's attention.
Ten therefore had not copied the whole of a broadcast by taking a few seconds from a 30 minute program. Whether those few seconds were a substantial part of the broadcast wasn't discussed by the High Court, but it seems unlikely that the few seconds taken from each program would amount to a substantial part, in the sense that those seconds are important to the substance of the broadcast.
What can and can't be done now
Both for owners of broadcast copyright and for those who would use another's broadcast, this is an important decision - in fact, it is the first time the High Court has considered broadcast copyright in detail. From this decision, it's clear that broadcasts which are
- put out to the public as discrete periods of broadcasting; and
- identified and promoted by a title which would attract the attention of the public would be a television broadcast protected by copyright. A television advertisement would also be a television broadcast, and therefore protected independently of the programs in which it is inserted. Making a film or rebroadcasting the whole or substantial part of an ad would therefore be an infringement of the broadcast copyright in that ad.
The High Court however did not limit "broadcast" to a specific program. We know that simply because a prime time news broadcast includes various items or "stories", it does not necessarily make each of these separate "television broadcasts" in which copyright subsists. On the other hand, we still don't know whether a distinct segment of a program is a television broadcast separate from the program as a whole (which would still be a television broadcast).
The harder problem therefore is determining what is a substantial part of a broadcast when "broadcast" is not limited to a specific program.
This is an important question. Take for example a sports event such as track and field championships or car racing, which can be broadcast for many hours over one day. If another broadcaster used the last three seconds of the final of the hundred metres sprint, that would probably be considered a substantial part of the race. Is a substantial part judged with respect to the race or the entire broadcast of the athletics event, which may contain many events and other exciting moments? Are the last few seconds of a five hour car race a substantial part of the broadcast of that race? The High Court's decision offers little guidance on these issues.
Finally, the Copyright Act provides defences for infringement, such as fair dealing. The High Court did not consider how this applied to Ten's use of Nine's material, but for many re-users of broadcast material it will be an important defence, particularly where there is uncertainty over what is a substantial part of a broadcast.
This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. In respect of legal services provided in NSW, liability limited by the Solicitors' Scheme approved under the Professional Standards Act 1994 (NSW).