FEDERAL COURT OF AUSTRALIA

TCN CHANNEL NINE & ORS v NETWORK TEN [2001] FCA 108

N 105 of 2000

SUMMARY

In accordance with the practice of the Federal Court in certain cases of public interest, I have prepared this brief summary to accompany the Reasons for Judgment that are being delivered today. But the only authoritative pronouncement of my reasons is that contained in the full Reasons for Judgment. This summary is necessarily incomplete.

The proceedings brought by the Applicant Corporations (“Nine”) against the Respondent (“Ten”) are for alleged breach of television broadcast copyright relating to the footage of twenty (20) Nine television programmes. Two species of breaches have been pleaded, one relating to the making of a cinematograph film of the programmes or a copy of such film in contravention of s 87(a) of the Copyright Act 1968 (Cth) (as amended), and the other for re-broadcasting in contravention of s 87(c) of that legislation. The proceedings heard last November related to the issue only as to re-broadcasting of Ten’s twenty programmes, and the issue as to making cinematograph films or copies thereof of such twenty programmes has yet to be determined. The twenty Nine television programmes were broadcast over the period from 10 August 1999 to 28 June 2000.

To establish breach of copyright pursuant to s 87(c) of the Act, it was necessary for Nine to provide that Ten took a substantial part of the subject matter of television broadcast copyright. For the complex reasons appearing in the Judgment, the Court has held that a

substantial part of the subject matter of each Nine programme or programme segment was not the subject of any infringement of copyright on Ten’s part.

In the light of that finding,  it became unnecessary to consider Ten defences of fair dealing to Nine’s claim, one of which relating to some programmes was for the purpose of criticism and review, and the other of which relating to some programmes was for the purpose of reporting news. I have recorded in the Judgment that had it been necessary for me to decide upon such defences, I would have upheld either one or both of such defences in relation to eleven out of the twenty programmes involved, and would have rejected the same in relation to the remaining nine programmes.

CONTI J

20 FEBRUARY 2001