Case: Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14 ; (2004) 218 CLR 273
Outcome: cited
In Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14 ; (2004) 218 CLR 273 at [75] , McHugh A-CJ, Gummow and Hayne JJ considered that ' a television broadcast ' for the purposes of s 87 of the Act included the programs ' put out to the public, the object of the activity of broadcasting, as discrete periods of broadcasting identified and promoted by a title '. Their Honours rejected the notion that any image or sound broadcast by way of television in the course of those programs satisfied the statutory description. This suggests that the manner in which an author presents a copyright work may assist in determining what that work is. 39 Section 10(1) of the Act relevantly defines a literary work to include ' a table, or compilation, expressed in words, figures or symbols '. The work that Nine relevantly produces is the Weekly Schedule. It is that work that is disseminated to the Aggregators. The compilation is expressed in words, figures and symbols that describe, in their totality, time and title information, additional program information and the synopses for a complete broadcast week. 40 The first two columns of the Weekly Schedule, the time and title information, although part of the whole compilation, are not purveyed by Nine and have not been shown to have any commercial value to Nine or the Aggregators. The evidence establishes that the synopses, which can be said to contain the "literary component" of the Weekly Schedule, require time and attention, are important and of commercial and promotional significance. Mr Healy states that he sees them as being a form of promotion for new programs. Nine considers it important that the synopses included within the Weekly Schedule are correct. 184 The underlying principle is that the law of copyright does not give an exclusive right to state or describe particular facts ( Victoria Park at 498 per Latham CJ). Substantial reproduction and causal connection are separate and cumulative requirements for a finding of infringement ( Desktop at [399] per Sackville J). If a causal connection is shown, it is then necessary to assess whether the allegedly infringing work can fairly be said to be so sufficiently similar to the first that it is but a reproduction ( Skybase at 533 per Hill J, with whom French J agreed). While copying is an essential element in providing the requisite causal connection between the copyright work and the alleged infringement, copying does not, of itself, determine whether or not there has been the taking of a substantial part. Not every act of copying is an infringement of copyright. It is also necessary to establish the appropriate subject matter for copyright, what is original and whether there has been a taking of a substantial part ( Network Ten [2004] HCA 14 ; 218 CLR 273 at [14] [17] per McHugh A-CJ, Gummow and Hayne JJ). 197 Nine relies upon the fact that Ice competes with it directly, in the sense that Nine sub-licenses its program listings information through HWW to Foxtel for use in an EPG, the Foxtel Digital Guide. Ice does provide its subscribers with the ability to record Nine programs in digital format, other than by subscription to Foxtel. However, it is not part of Nine's pleaded case that copyright subsists in its television broadcasts or the programs themselves. Nine's copyright in the Weekly Schedule does not extend to protect the interests in the broadcast and recording of those programs that are listed in the compilation (Ricketson S, The Berne Convention for the protection of literary and artistic works: 1886-1986 (1986) at 299, cited in Desktop at [74] per Lindgren J). Those interests are not protected by the compilation but by the copyright which subsists, if established, in Nine's television broadcasts and the programs themselves as copyright works. For example, ' there may be copyrights under Pt IV [of the Act] in a cinematograph film which is the subject of a television broadcast, and the film may utilise the copyrights under Pt III [of the Act] in, for example, original dramatic and musical works ' ( Network Ten [2004] HCA 14 ; 218 CLR 273 at [31] per McHugh A-CJ, Gummow and Hayne JJ). 198 Ice does not take the skill and labour of placing programs in that it plays no part in the placement of programs. It is not in competition with Nine to attract viewers in the sense of competition with other television networks. It does not have access to information from the Weekly Schedule until that information is released to the Aggregators and published by them in the Aggregated Guides. It does not take from Nine the timing of the release of the information, as Nine chooses when to provide the Late Changes Notices to the Aggregators for inclusion in the published Aggregated Guides. Ice's business plan requires it to be accurate. Mr Rilett may reject specific time and title information in the published guides and substitute his own listing of a program, although there is no evidence to suggest that this is other than an infrequent occurrence. 199 In determining whether a defendant has taken a substantial part in quality of a work, the impact of the copying on the interest protected by the copyright is relevant (Lahore J and Rothnie W, Copyright and Designs at [34.130]). This, in turn, may make take account of the commercial interests of the copyright owner and whether the parties are in competition, as well as whether there has been a taking of skill and labour. However, the reference point is the original work for which protection is claimed. A compilation is the collection, assembly and arrangement of chosen information into a single entity. Cases addressing the taking of a part of an artistic work, for example a line in a poem or a refrain in a musical work, may address substantial part and the quality and quantity taken differently.