TCN CHANNEL NINE v NETWORK TEN [2001] FCA 841

TCN CHANNEL NINE v NETWORK TEN [2001] FCA 841

Ten did not infringe Nine's television broadcast copyright under s 87(a) because s 25(4)(a) did not cause copyright in a television broadcast to attach separately to each and every visual image copied onto Ten's video tapes. Section 87(a), like s 87(c), had to be read with s 14(1)(a), so infringement required taking a substantial part of the relevant television programme or identifiable segment, and the excerpts copied by Ten did not satisfy Nine's pleaded theory that each image was itself protected as a substantial part.

Jurisdiction
Australia
Judgment Date
04 July 2001
Procedural Posture
Copyright Infringement Proceeding Concerning Television Broadcast Copyright / Further Hearing on the Applicants' Alternative Causes of Action Under S 87(a) of the Copyright Act 1968 (cth) After Earlier Dismissal of Claims Under S 87(c)
Outcome
The applicants' cause of action for breach of television broadcast copyright under s 87(a) was dismissed.
Legal Topics
['television Broadcast Copyright' 'cinematograph Film of Broadcast' 'video Taping of Television Excerpts' 'substantial Part' 'visual Images in a Television Broadcast' 'implied Licence by Trade Practice or Usage' 'fair Dealing Defences']
['copyright' 'intellectual Property' 'statutory Interpretation'] ['television Broadcast Copyright' 'cinematograph Film of Broadcast' 'video Taping of Television Excerpts' 'substantial Part' 'visual Images in a Television Broadcast' 'implied Licence by Trade Practice or Usage' 'fair Dealing Defences']

Case Brief

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Procedural Posture

Copyright Infringement Proceeding Concerning Television Broadcast Copyright / Further Hearing on the Applicants' Alternative Causes of Action Under S 87(a) of the Copyright Act 1968 (cth) After Earlier Dismissal of Claims Under S 87(c)

Legal Issues

  1. 1 ["Whether Ten infringed Nine's television broadcast copyright under s 87(a) of the Copyright Act 1968 (Cth) by making video tapes of excerpts from Nine programmes for use in The Panel." 'Whether s 25(4)(a) caused television broadcast copyright under s 87(a) to extend to each individual visual image comprised in a broadcast.' 'Whether the making of a cinematograph film of a broadcast involved taking a substantial part of the subject matter of copyright for the purposes of s 14(1)(a).' 'Whether making a permanent video record of broadcast excerpts distinguished s 87(a) from s 87(c) because the broadcast images were no longer ephemeral or evanescent.' 'Whether, if infringement were otherwise established, Ten was authorised by an implied licence based on Australian television industry trade practice and usage.']

Ratio Decidendi

Ten did not infringe Nine's television broadcast copyright under s 87(a) because s 25(4)(a) did not cause copyright in a television broadcast to attach separately to each and every visual image copied onto Ten's video tapes. Section 87(a), like s 87(c), had to be read with s 14(1)(a), so infringement required taking a substantial part of the relevant television programme or identifiable segment, and the excerpts copied by Ten did not satisfy Nine's pleaded theory that each image was itself protected as a substantial part.

Court Disposition

The applicants' cause of action for breach of television broadcast copyright under s 87(a) was dismissed.

Orders

  • ['The cause of action of the Applicants for breach of television broadcast copyright by way of making cinematograph film of the subject television broadcast pursuant to s 87(a) of the Copyright Act 1968 (Cth) (as amended) be dismissed.' 'The parties to make submissions as to orders as to costs of the proceedings...