Case: Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 218 CLR 273
Outcome: referred to
The yet further matter advanced by TV Plus in the context of the copyright issues, in sequence of presentation, was that broadcast copyright is 'distinct' from copyright in other works in relation to what may constitute the taking of ' a substantial part ' of the copyright work within s 14(1) of the Copyright Act . I was referred in that regard to the decision of the High Court in Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 218 CLR 273, and in particular at 299-303. The particular copyright work there established by the High Court consisted essentially of identified televised programmes or certain segments of televised programmes, as established by a majority of the High Court, rather than merely single images. In the course of the reasons for judgment of the majority of the High Court, it was explained that television broadcast copyright concerns broadcasts ' made from a place in Australia ', and so made ' under the authority of a license...or class license ' issued under the Broadcasting Services Act 1992 (Cth), and thereby involved the notion that the maker of the broadcaster is taken to be ' the person who provided the broadcasting services by which the broadcast was delivered '. The statutory scope of ' provide ' or ' provision ' may therefore be seen to be comprehensive. TV Plus did not appear to explain at the present stage of the proceedings why the notion of ' substantial part' was not susceptible to satisfaction in the particular circumstances of the present proceedings. 50 TV Plus next advanced the submission that in order to establish infringement here on the part of any one or more of the TV Plus companies, it would be necessary in any event for UBI to establish interception and thereafter broadcast (or what may conceivably be termed as 're-broadcast') within Australia, and it would not be enough in that regard for UBI's copyright cause of action to demonstrate interception from a place outside of Australia. Given the complexity of the modern technology involved in television transmission of televised programs originating offshore, and the apparent need for TV Plus to comprehensively establish the circumstances as to interception etc, it would be inappropriate to resolve any such complex as well as apparently controversial issues at this interlocutory stage. In that regard I refer to what I have earlier merely outlined in [4] above of these reasons. Mr Jeremic testified broadly and in a sense imprecisely as to the signals being transmitted 'in part from within Bosnia and Herzegovina', and the signals thus supposedly standing outside any notion of an Australian broadcast. TV Plus also pointed to the need for UBI to demonstrate copying in a television context, explaining that '[s]imilarities alone, or even complete identity, between the parties' works or their subject matter, are not enough in the absence of copying, as copyright is not a monopoly right such as a patent'. It is enough from a practical perspective to merely record and not resolve any such issues at the present stage of the proceedings, particularly given that more evidentiary precision, and further expert evidence, would appear to be required.