TCN Channel Nine Pty Limited v Network Ten Limited (includes corrigendum dated 12 September 2001) [2001] FCA 108 (20 February 2001)

Last Updated: 11 October 2001

FEDERAL COURT OF AUSTRALIA

TCN Channel Nine Pty Limited v Network Ten Limited [2001] FCA 108

TCN CHANNEL NINE PTY LIMITED, QUEENSLAND TELEVISION LIMITED & GENERAL TELEVISION CORPORATION PTY LIMITED v NETWORK TEN PTY LIMITED

N 105 OF 2000

CONTI J

SYDNEY

20 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 105 OF 2000

BETWEEN:	TCN CHANNEL NINE PTY LIMITED FIRST APPLICANT QUEENSLAND TELEVISION LIMITED SECOND APPLICANT GENERAL TELEVISION CORPORATION PTY LIMITED THIRD APPLICANT
AND:	NETWORK TEN PTY LIMITED RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	20 FEBRUARY 2001
WHERE MADE:	SYDNEY

CORRIGENDA

Paragraph 17: The words "assists an understanding as why parody..." should be changed to read "assists an understanding as to why parody...".

Paragraph 17: The words "and to have done so in way that..." should be changed to read "and to have done so in a way that...".

Paragraph 26: The words "Indeed Nine contended that there i involved..." should be changed to read "Indeed Nine contended that there is involved...".

Paragraph 28: The words "for the reasons that in the absence..." should be changed to read "for the reason that in the absence...".

Paragraph 29(i) The words "For example, following Nine..." should be changed to read "For example, the following Nine...".

Paragraph 44: The words "require only the minor qualification". Should be changed to read "require only minor qualification."

Paragraph 45: The words "Nationwide News of the notion of quality as Mance LJ..." should be changed to read "Nationwide News of the notion of quality. As Mance LJ...".

Associate:

Dated: 12 September 2001

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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

FEDERAL COURT OF AUSTRALIA

TCN CHANNEL NINE v NETWORK TEN [2001] FCA 108

COPYRIGHT - television broadcasting - two competing television stations - re-broadcasting by one station of excerpts of television programmes recently broadcast by the other - whether in so doing re-broadcaster infringed original broadcaster's television broadcast copyrights by taking a "substantial part" of latter's original television broadcasts - meaning of "substantial part" relating to television broadcasts - whether "substantial part" to be measured by reference to whole of any one or more single visual images broadcast by television station, or to whole of television station's daily or weekly emitted television signal or any other period of signal, or to whole of television station's individual programmes or any segments of programmes - extent to which criteria for measurement affected by quality of substantial part taken or whether measurement confined to quantity of substantial part taken - whether re-broadcasting station's objects or purpose in re-broadcasting excerpts of competing television station's programmes relevant to issue as to "substantial part" taken - difference between purpose or object of satire in contrast to parody or burlesque material in taking - whether defence of fair dealing for purpose of criticism or review open in circumstances of re-broadcasting - whether defence of fair dealing for purpose of reporting news open in any circumstances of re-broadcasting - whether in either fair dealing situation sufficient acknowledgment was made of source of what was re-broadcast - legitimacy of recourse to reports to United Kingdom and Australian Parliaments concerning what was their proposed new copyright legislation.

Copyright Act 1968 (Cth) ss 10(1) (as to definitions), 14(1)(a), 22(4), 25(4), 41, 42, 85-88, 89-91, 92(1), 95, 100A, 101, 103A, 103B(1).

Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 27 IPR 133.

AGL Sydney Ltd v Shortland County Council (1989) 17 IPR 99.

Ainsworth Nominees Pty Ltd v Andclar Pty Ltd (1988) 12 IPR 551.

Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1992) 176 CLR 300.

Beloff v Pressdram Ltd [1973] 1 All ER 241

British Broadcasting Corporation v British Sky Broadcasting Ltd (1991) 21 IPR 503

Bromwell v Halcombe (1836) 3 My & Cr 737.

CBS Records Australia Ltd v Telmark Teleproducts (Aust) Pty Ltd (1987) 9 IPR 440.

Chappell & Co Ltd v DC Thompson & Co Ltd [1928-1935] MacG Cop Cas 467.

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39

Compagnie Generale Des Establissements Michelin-Michelin & Cie v National Automobile Aerospace Transportation and General Workers Union (Federal Court of Canada, unreported, 19 December 1996 - Teitelbaum J).

Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49; (1999) 166 ALR 228

De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99.

Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] Fleet Street Reports 121.

Fernald v Jay Lewis Productions Ltd [1975] FSR 499.

Glyn v Weston Feature Film Co [1916] 1 Ch 261.

Hawkes & Son (London) Ltd v Paramount Film Service Ltd [1934] 1 Ch 593.

Hyde Park Residence Ltd v Yelland [2000] 3 WLR 215.

Hubbard v Vosper [1972] 2 QB 84

Johnson v Bernard Jones Publications Ltd [1938] 1 Ch 599

Joy Music Ltd v Sunday Pictorial Newspapers (1920) Ltd [1960] 1 All ER 703.

Kipling v Genatosan Ltd [1917-1923] MacG Cop Cas 203

Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465.

Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 65 FCR 399.

Nationwide News Pty Ltd v Copyright Agency Ltd (1995) 55 FCR 271

Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85.

Newspaper Licensing Agency Limited v Marks & Spencer Plc [2000] 3 WLR 1256; 48 IPR 229

Nine Network Australia Pty Ltd v Australian Broadcasting Corporation [1999] FCA 1864.

Pro Sieben Media AG v Carlton UK Television Ltd [1999] 1 WLR 605.

Rees v Melville [1911-1916] MacG Cop Cas 168.

Schott Musik International GMBH & Co v Colossal Records of Australia Pty Ltd (1997) 75 FCR 321.

Spelling Goldberg Productions Inc v BPC Publishing Ltd [1981] RPC 283

Time Warner Entertainment Co Ltd v Channel 4 Television Corporation PLC (1993) 28 IPR 459.

Union Features Syndicate Inc v Star Newspapers Pty Ltd (unreported, Supreme Court of NSW, proceedings 2637 of 1977).

Universal Press Pty Ltd v Provest Ltd (1989) 87 ALR 497.

University of London Pres Ltd v University Tutorial Press Ltd [1916] 2 Ch 601.

University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1.

Wainright Securities Inc v Wall Street Transcript Corp (418 F Sup 620) (SDNY 1976) (on appeal 558F 2d 91 (2^nd Cir 1977)).

TCN CHANNEL NINE PTY LIMITED, QUEENSLAND TELEVISION LIMITED & GENERAL TELEVISION CORPORATION PTY LIMITED v NETWORK TEN PTY LIMITED

CONTI J

SYDNEY

20 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 105 OF 2000

BETWEEN:	TCN CHANNEL NINE PTY LIMITED FIRST APPLICANT QUEENSLAND TELEVISION LIMITED SECOND APPLICANT GENERAL TELEVISION CORPORATION PTY LIMITED THIRD APPLICANT
AND:	NETWORK TEN PTY LIMITED RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	20 FEBRUARY 2001
WHERE MADE:	SYDNEY

INDEX OF JUDGMENT

Page	Paragraphs	Headings
1	1 to 3	Introduction
5	4 to 7	The legislative scheme for infringement of television broadcast copyright
8	8 to 11	The issues arising
11	12 to 23	Substantiality - the doctrinal development prior to and including the period of time during which television copyright has subsisted
30	24 to 31	Nine's submissions on substantiality
41	32 to 40	Ten's submissions on substantiality
46	41 to 46	Conclusion on the statutory meaning of "a substantial part" of a television broadcast
53	47 to 53	Authorities relating to fair dealing for the purpose of criticism or review and for the purpose of reporting news
59	54	Sufficient acknowledgment
59	55 to 61	Ten's submissions upon fair dealing defences
63	62 to 65	Nine's submissions upon fair dealing defences
66	66	Conclusion on fair dealing principles emerging from authorities
67	67 to 70	Conclusions on substantiality issues applicable to the subject programmes
73	71 to 73	Conclusions on fair dealing issues in relation to the subject programmes

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 105 OF 2000

BETWEEN:	TCN CHANNEL NINE PTY LIMITED FIRST APPLICANT QUEENSLAND TELEVISION LIMITED SECOND APPLICANT GENERAL TELEVISION CORPORATION PTY LIMITED THIRD APPLICANT
AND:	NETWORK TEN PTY LIMITED RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	20 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The cause of action of the Applicants for breach of television broadcast copyright by way of re-broadcasting pursuant to s 87(c) of the Copyright Act 1968 (Cth) (as amended) be dismissed.

2. The cause of action of the Applicants for breach of television broadcast copyright by way of making a cinematograph film of the subject television broadcasts, or a copy of such a film, be listed for mention on a date to be fixed.

3. The parties to make submissions as to orders as to the costs of the proceedings to date.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 105 OF 2000

BETWEEN:	TCN CHANNEL NINE PTY LIMITED FIRST APPLICANT QUEENSLAND TELEVISION LIMITED SECOND APPLICANT GENERAL TELEVISION CORPORATION PTY LIMITED THIRD APPLICANT
AND:	NETWORK TEN PTY LIMITED RESPONDENT

JUDGE:	CONTI J
DATE:	20 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1 These proceedings were commenced by TCN Channel Nine Pty Limited and two Nine related companies (each included in the description "Nine") against Network Ten Pty Limited ("Ten") by Statement of Claim filed on 9 February 2000, which sought declaratory and injunctive relief and damages for infringement of television broadcast copyright by way of re-broadcasting in contravention of s 87(c) of the Copyright Act 1968 (Cth) ("the Act" or "the Australian Act"). Both Nine and Ten are leading commercial television stations in Australia. By the time of commencement of the hearing on 13 November 2000, Nine was seeking by Further Amended Statement of Claim additional damages relating to further re-broadcasting infringements alleged to have occurred after service of the original Statement of Claim. All infringements were said to have been constituted by Ten's alleged re-broadcasting, in Ten's Wednesday evening television program called "The Panel", of excerpts from episodes of certain Nine television programs broadcast over the period from 10 August 1999 to 28 June 2000, being excerpts claimed by Nine to constitute "substantial parts" of such Nine programs within s 14(1)(a) of the Act. For convenience I will refer to the Further Amended Statement of Claim as "the S/C".

2 The Panel program was first broadcast in early 1998. During that calendar year a total of 42 weekly episodes of The Panel were produced and broadcast, and during 1999 the same number of weekly episodes of The Panel were produced and broadcast. By November 2000 when the hearing of the proceedings took place, a further 36 weekly episodes had been produced. Since mid 1998, The Panel has been publicly claimed by Ten to have consistently been the highest rating program in the 16 to 39 years of age demographic produced on television in Australia. Its programs are planned and designed to provide elements of current affairs, news, comedy and so-called "chat". It has been described as a current affairs program that seeks to be entertaining and unscripted. Each episode is broadcast on Wednesday evening for 60 to 80 minutes commencing at 9.30pm. The programs feature a regular panel of about four regular panelists, who engage in what presents to television viewers as unrehearsed dialogue undertaken before a well attended studio audience. One or two guests of prominence in, for instance, sport are usually invited to participate with the regular panelists in the program for each evening. The preparatory work and procedures implemented for the production of each weekly episode for The Panel may be summarised as follows: program designers and regular panelists meet together on the Tuesday preceding the pending Wednesday night's broadcast for the purpose of identifying recent events and any "breaking stories" emerging therefrom, and to identify prospective Panel guests currently and prominently involved in, for instance, politics, film or drama production, sport or music, and also to consider the use of recent television footage of prospective utility for the next program. Such planning, review and selection process might continue until as late as 8.30pm or 8.45pm on Wednesday evenings, the program episodes going to air as above stated on Wednesday evenings at 9.30pm. Media source footage or other media material selected for prospective entertaining comment by The Panel's attendees have included footage of recent television programs produced by each of the Australian major television stations, that is to say, not just the Applicants' Channel 9 but also Channels 2, 7 and SBS, and the Respondent's Channel 10 (though in the latter case to a much less extent than in the case particularly of Channel 9 and 7), and in addition by pay television channels and film videos (Exhibit R3). Some promotional descriptions of the characteristics of The Panel programs or episodes, which have been all produced for Ten by its contracted production team known as "Working Dog", have included the following:

"our light entertainment stable"

"chuckle and jibe over the week's events"

"the best homegrown laugh all week"

"produces the best one-liners"

"though once deemed pretentious by some reviewers, it is impossible to imagine anyone else being able to make a round table chat equally successful"

"musing irreverently over the topical issues of the week".

The Executive Producer of The Panel, Mr Hirsh, rejected the suggestion that The Panel was only a comedy show and asserted that the programs produced for The Panel were "not necessarily entertainment". The Channel Nine footage excerpts that I have viewed, being those produced in the immediate context of the re-broadcasting complained of, were for the most part punctuated with humour and laughter on the part of the Panel members and their guest(s), though there were some serious discussions undertaken as well. Mr Hirsh accepted that television audience ratings were of concern to him, as was effective competition by the Panel with commercial television stations such as Channels Nine and Seven.

3 The Nine program titles the subject of the television broadcast copyright infringements alleged by Nine are set out below in column 1, together with the dates of broadcast by Nine in column 2, and further set out below in column 3 are the dates of the re-broadcasts by Ten of excerpts from such corresponding Nine programs:

Program Title	Date of Broadcast by Nine (Chronological Sequence)	Date of Re-Broadcast by Ten of Excerpts from Nine Broadcast
"The Today Show"	10 August 1999	11 August 1999
"Midday"	26 August 1999	9 September 1999
"Wide World of Sports"	26 September 1999	29 September 1999
"A Current Affair"	19 October 1999	20 October 1999
"Australia's Most Wanted"	11 October 1999	13 October 1999
"Pick Your Face"	20 August 1999	1 September 1999
"Crocodile Hunter"	21 August 1999	25 August 1999
"Days of Our Lives"	19 August 1999	26 August 1999
"Days of Our Lives"	20 August 1999	26 August 1999
"Simply the Best"	19 October 1999	20 October 1999
"The Inaugural Allan Border Medal Dinner"	31 January 2000	8 March 2000
"Sunday"	19 March 2000	29 March 2000
"The 72nd Academy Awards	27 March 2000	29 March 2000
"Sale of the New Century"	4 April 2000	5 April 2000
"The Today Show"	4 April 2000	5 April 2000
"The Today Show"	5 May 2000	10 May 2000
"Nightline"	15 May 2000	24 May 2000
"Newsbreak"	22 May 2000	24 May 2000
"Who Wants to be a Millionaire"	29 May 2000	7 June 2000
"The Today Show"	28 June 2000	28 June 2000

It may be noted that fourteen of the re-broadcasts occurred within one week of the Nine broadcasts to which they respectively referred.

It is convenient to adopt in these Reasons for Judgment the S/C descriptions of such Nine excerpts so re-broadcast by Ten as the "Panel Segments".

The legislative scheme for infringement of television broadcast copyright

4 Nine's case as pleaded in the S/C was to the effect that each of the Panel Segments constituted the re-broadcast by Ten without the license of Nine of a substantial part of each of such Nine television programs or episodes, and thus an infringement of Nine's copyright in such television broadcasts, the expression "substantial part" carrying the critical statutory connotation referred to in s 14(1)(a) of the Act reproduced in [8] below. Division 6 of Part IV of the Copyright Act 1968 (Cth) governs such cause of action and is headed "Infringement of copyright in subject-matter other than works". The expression "work" is defined by s 10(1) of the Act to mean "a literary, dramatic, musical or artistic work", the copyright in relation thereto being governed by Part III of the Act. Copyright in "subject matter other than works" comprises "television broadcasts", "sound broadcasts", "sound recordings", "cinematograph films" and "published edition of literary, dramatic, musical or artistic works", and is governed by Part IV of the Act, and the same is in addition to and independent of any copyright in the literary dramatic, musical or artistic work from which such subject matters may have been derived (see s 113 of the Act). A distinguishing feature of the Part III "works" is the subsistence of originality in the expression of the same, and no pre-condition of originality is required for qualification as Part IV "subject matters". Such pre-condition of originality was the requirement of the common law of copyright which preceded the first British Copyright Act of 1911, being legislation which was wholly adopted by way of schedule to the first Australian Copyright Act of 1912.

5 By s 101 of Division 6 of Part IV, it is provided, so far as is material, as follows:

"101 Infringement by doing acts comprised in copyright

(1) Subject to this Act, a copyright subsisting by virtue of this Part is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorises the doing in Australia of, any act comprised in the copyright.

(2) The next two succeeding sections do not affect the generality of the last preceding subsection.

...

(4) Subsection (1) applies in relation to an act done in relation to a television broadcast or a sound broadcast whether the act is done by the reception of the broadcast or by making use of any article or thing in which the visual images and sounds comprised in the broadcast have been embodied."

The expressions "television broadcast" and "sound broadcast" are respectively defined by s 10(1) of the Act as follows:

" `television broadcast' means visual images broadcast by way of television, together with any sounds broadcast for reception along with those images."

" `sound broadcast' means sounds broadcast otherwise than as part of a television broadcast."

6 The expression "broadcast" is defined by s 10(1) to mean "transmit by wireless telegraphy to the public", and "wireless telegraphy" is defined by s 10(1) to mean "the emitting or receiving, otherwise than over a path that is provided by material substance, of electro-magnetic energy". The identity of a television or sound broadcaster is to be ascertained in accordance with s 22(5) of the Act as follows:

"For the purposes of this Act, a television broadcast or sound broadcast shall... be deemed to have been made by the person by whom, at the time when, and from the place from which, the visual images or sounds constituting the broadcast, or both, as the case may be, were broadcast."

Television broadcast copyright is attributable by s 91 as follows:

"91 Subject to this Act, a copyright subsists:

...

(b) in a television broadcast (other than a broadcast transmitted for a fee payable to the person who made the broadcast) made from a place in Australia under the authority of:

(i) a license allocated by the Australian Broadcasting Authority under the Broadcasting Services Act 1992;

..."

No issue arises of course as to the holding of such a license by Nine. Section 91(b)(i) should be read with s 99(b) as follows:

"99 Subject to Parts VII and X:

...

(b) a person who is or has been a holder of a license allocated by the Australian Broadcasting Authority under the Broadcasting Services Act 1992... is the owner of any copyright subsisting in a television broadcast... made by that person;

..."

7 The nature of copyright in television and sound broadcasts is defined in s 87 of the Act as follows:

"For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a television broadcast or sound broadcast, is the exclusive right:

(a) in the case of a television broadcast in so far as it consists of visual images - to make a cinematograph film of the broadcast, or a copy of such a film;

(b) in the case of a sound broadcast, or of a television broadcast in so far as it consists of sounds - to make a sound recording of the broadcast, or a copy of such a sound recording; and

(c) in the case of a television broadcast or of a sound broadcast - to re-broadcast it."

The subject proceedings have been conducted before me solely on the footing of infringement within s 87(c) above, that is to say, breach of copyright by way of re-broadcasting; but Nine foreshadowed an additional or alternative cause of action for infringement based upon s 87(a) of the Act in the circumstances described in [11] below. Section 95 stipulates a duration of copyright in a television broadcast or a sound broadcast of fifty years after the expiration of the calendar year in which the broadcast was made. The reference in s 87(a) above to making a "cinematograph film of the broadcast, or a copy of such film" picks up the following provisions of s 25(4) of the Act:

"In this Act

(a) a reference to a cinematograph film of a television broadcast shall be read as including a reference to a cinematograph film, or a photograph, of any of the visual images comprised in the broadcast; and

(b) a reference to a copy of a cinematograph film of a television broadcast shall be read as including a reference to a copy of a cinematograph film, or a reproduction of a photograph, of any of those images."

The issues arising

8 Nine's complaints of re-broadcasting by Ten in breach of s 87(c) of the Act concern excerpts of varying duration from each of Nine's programs or episodes listed in [3] above, each of which excerpts is said by Nine to comprise a "substantial part" of the subject matter of Nine's television broadcast copyright arising under s 91(b) above. The statutory expression "substantial part", as already mentioned at the commencement of [4] above, is contained in the critical definition provisions of s 14(1)(a) of the Act, which read as follows:

"14(1) In this Act, unless the contrary intention appears:

(a) a reference to the doing of an act in relation to a work or other subject-matter shall be read as including a reference to the doing of that act in relation to a substantial part of the work or other subject-matter..."

The contention as to "substantial part" in relation to a television broadcast, which I have from time to time described by way of abbreviation in terms of "substantiality", is the essential issue arising in Nine's case in chief. Substantiality of part of a copyright work was a concept originally developed by the common law of copyright. It is the linchpin for determination of Nine's contention that Ten has infringed its television broadcast copyrights pursuant to s 101 above by re-broadcasting such excerpts in contravention of s 87(c) above.

9 Ten contends that if the statutory notion of "substantial part" or substantiality is satisfied by Nine in the circumstances of its re-broadcasting of any of the Panel Segments, which Ten denies, then certain of such Panel Segments constituted "a fair dealing... for the purpose of criticism or review" within s 103A of the Act, the full text whereof reads as follows:

"103A Fair dealing for purpose of criticism or review

A fair dealing with an audio-visual item does not constitute an infringement of the copyright in the item or in any work or other audio-visual item included in the item if it is for the purpose of criticism or review, whether of the first-mentioned audio-visual item, another audio-visual item or a work, and a sufficient acknowledgment of the first-mentioned audio-visual item is made."

By s 100A of the Act, an "audio-visual item" is defined to mean inter alia a television broadcast. Thus if Nine succeeds on the substantiality issue in chief, it is open to Ten to establish the defence of fair dealing for the purpose of criticism or review.

The above expression "sufficient acknowledgment" contained in s 103A is defined by s 10(1), but only in relation to a "work". As already indicated in [4] above, "work" is defined by s 10(1) of the Act to mean "a literary, dramatic, musical or artistic work", that is to say, a work of originality in expression recognised by the common law of copyright to which Part III of the Act applies. The definition makes no reference to an audio-visual item and thus for instance to a television broadcast or any other "subject matter" within Part IV. What therefore constitutes a "sufficient acknowledgment" in relation to a television broadcast must fall to be determined by the circumstances of each "fair dealing... for the purpose of criticism or review".

10 Apart from the defence of fair dealing for the purpose of criticism or review, Ten contends that certain of the Panel Segments involved the reporting of news on the part of Ten by means of broadcasting, those Panel Segments having constituted "a fair dealing... for the purpose of, or [was] "associated with, the reporting of news" within s 103B(1)(b) of the Act, the text whereof reading as follows:

"103B(1) A fair dealing with an audio-visual item does not constitute an infringement of the copyright in the item or in any work or other audio-visual item included in the item if:

...

(b) it is for the purpose of, or is associated with, the reporting of news by means of broadcasting or in a cinematograph film."

Such statutory expression "fair dealing" appearing in both ss 103A and 103B(1) is not defined by the Act. It will be noticed that the requirement for "a sufficient acknowledgment", stipulated by s 103A, is absent from s 103B(1)(b). I am informed by Ten however that it is customary in the industry to attribute similar "sufficient acknowledgment" provisions to s 103(1)(b) as exist in s 103B(1)(a).

11 On the third day of the hearing, Nine sought to further amend the S/C (in the already amended form referred to in [1] above) by way of addition of the following paragraphs thereto:

"7A. Shortly prior to each such broadcast the Respondent made or authorised the making of a cinematograph film of the said footage from the Nine Programs for the purposes of each such broadcast.

8A. Each cinematograph film referred to in paragraph 7A constituted the making of a cinematograph film of a substantial part of each of the broadcasts from which the said footage was derived.

10A. Each making or authorising of the making of the cinematograph films referred to in paragraph 7A above constituted an infringement of copyright in the Nine Programs from which it was acquired.

11A. Unless restrained, the Respondent will continue to make or authorise the making of cinematograph films of substantial parts of the Nine Programs without the licence of the Applicants."

These amendments were designed to take advantage of the provisions of s 87(a) extracted in [7] above, by way of an alternative attack to that already advanced under s 87(c). At the conclusion of the evidence on the following day, Ten's opposition to the amendment was resolved by way of mutually agreed compromise, and the terms of such resolution became reflected in the document reproduced below (omitting formal parts):

"1. Grant leave to the Applicants to file in Court the Second Further Amended Statement of Claim which was handed up to the Court on 16 November 2000.

2. Order pursuant to Order 29 Rule 2 that the issues referred to in paragraphs 9A, 10A, and 11A of the Second Further Amended Statement of Claim be heard separately from and after the present hearing, if the need arises.

3. Reserve any questions of costs relating to the amendment."

Consequently this judgment does not address the issues raised above in relation to s 87(1)(a).

Substantiality - the doctrinal development prior to and including the period of time during which television broadcast copyright has subsisted.

12 As foreshadowed in [8] above, the first issue of statutory construction arising in the proceedings concerns the operation of the s 14(1)(a) notion of "substantial part of the... subject matter" in the context of an alleged infringement of a television broadcast by way of re-broadcasting of the same. The other issues of statutory construction, concerning fair dealing for purposes of criticism or review or for purposes of or associated with the reporting of news, do not arise if Ten can establish the absence of any taking of a "substantial part" of Nine's programs or episodes. As I have already mentioned, such notion of substantiality had its origins in the common law of copyright, prior to the introduction of the Copyright Act 1911 (UK), and was developed with emphasis more on the quality or value of what was taken by the alleged infringer from the protected work than on the quantity of what was taken. An example of the common law description of the concept is contained in the following passage in Bromwell v Halcombe (1836) 3 My & Cr 737 at 738 per Lord Cottenham:

"When it comes to a question of quantity, it must be very vague, One writer might take all the vital part of another's book, though it might be but a small proportion of the book in quantity. It is not only quantity but value that is always looked at. It is useless to refer to any particular cases as to quantity."

This passage is extracted in the Australian textbook "The Law of Intellectual Property, Copyright, Designs and Confidential Information" (2^nd ed) LBC 1999 by Staniforth Ricketson, in the context of his discussion of substantiality, as a prelude to his discussion of a number of authorities referred to in [13-16] below. As the authorities thereafter cited by the author demonstrate, the expressions "value" or "quality" have been further judicially paraphrased in terms of the essentiality, vitality, or materiality of the part or parts of the works which have been copied or taken by the infringer. Virtually all of such authorities have related however to copyrights based upon the originality of works, so that the extent to which such principles may apply or extend to Part IV copyright subject matters, and in particular television broadcasts, presents considerable conceptual difficulty.

13 Thus by way of illustration in relation to the dramatic work of the complainant involved in Rees v Melville [1911-1916] MacG Cop Cas 168 (CA) at 174, the touchstone of substantiality was expressed in terms of the "dramatic value and importance" of the part taken, "... even although the portion [taken] might in fact be small and the actual language not copied", and in relation to the musical work of the complainant involved in Hawkes & Son (London) Ltd v Paramount Film Service Ltd [1934] 1 Ch 593 (CA), a substantial part was said to have been represented by only a relatively few bars containing nevertheless the "essential air" of the work. Another illustration is the well-known case in England of Kipling v Genatosan Ltd [1917-1923] MacG Cop Cas 203 (Ch), where literary copyright was infringed by the use of four lines from a serious poem which constituted "the essential part of the crescendo" of Kipling's "If", such four lines having been used in an advertisement for the infringer's medicinal preparation. More recently in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465, which related to betting coupons comprising sheets of paper listing forthcoming football matches, and which coupons were found to constitute the reproduction of a substantial part of the original literary work in the nature of tables or compilations, Lord Evershed referred, at 473, to the statutory notion of substantiality in terms of the "substantial significance of what is taken", whilst Lord Pearce said at 481 "Whether a part is substantial must be decided by its quality rather than its quantity". More recently, in the application of the principles as to substantiality enunciated in Ladbroke, the Court of Appeal in England, in Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] Fleet Street Reports 121 at 130, referred to an extract from Professor Cornish's work Intellectual Property, 3^rd ed, Sweet & Maxwell 1996 para 11-06 containing the imponderable observation "The answer in a particular case can only lie in the Tribunal's sense of fairness".

14 In more recent times in Australia, the statutory concept of substantiality has fallen for consideration in the context of computer programs, whose copyright protection falls nevertheless within Part III of the Act as a literary work. Judicial emphasis has been placed upon the extent of the "importance" of the taken portion of the complainant's computer program in relation to such work as a whole: see Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1992) 176 CLR 300 at 305 (per Mason CJ), and the subsequent Full Federal Court decision in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 27 IPR 133 at 147 and 172 (per Lockhart and Gummow JJ). As to the former case reference, after first referring to Lord Pearce's emphasis in Ladbroke upon quality rather than quantity, Mason CJ at 305 said as follows:

"As this statement makes clear, in determining whether the quality of what is taken makes it a `substantial part' of the copyright work, it is important to inquire into the importance which the taken portion bears in relation to the work as a whole: is it an `essential' or `material' part of the work... However, in the context of copyright law, where emphasis is to be placed upon the `originality' of the work's expression, the essential or material features of a work should be ascertained by considering the originality of the part allegedly taken."

Whilst the judgment of Mason CJ in Autodesk was in the minority, the same (inclusive of the passage just cited) has been subsequently preferred by all members of the High Court in the subsequent computer copyright case of Data Access Corporation v Powerflex Services Pty Limited [1999] HCA 49; (1999) 166 ALR 228 at [83-84], the area of disagreement by Gaudron J at [127-130] being unrelated to principles concerning substantiality.

15 The decision of the Full Federal Court in Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 65 FCR 399 however provides more assistance than perhaps any other in the context of the present proceedings, since the copyright works comprised so-called published edition of literary works within s 88 and thus Part IV of the Act, and where thus originality of expression is not involved in establishment of the copyright so protected. In determining whether the conduct of certain educational institutions in reproducing portions of newspapers and magazines infringed the publishers' published edition copyright conferred by s 88 of the Act, by reason of such reproduction constituting a "substantial part" of such Part IV subject matter within s 14(1)(a), Sackville J (with whose judgment Jenkinson and Burchett JJ wholly agreed), introduced his appraisal of the issue of alleged breach at 418-419, under the sub-heading "the test of substantiality", by referring to the passage in the speech of Lord Pearce in Ladbroke identified in [13] above, and to what was said by Mason CJ in Autodesk (see [14] above), in the following way:

"It has been said that the phrase "substantial part" as used in s 14(1) of the Act refers to the quality of what is taken, rather than the quantity: Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1993) 176 CLR 300 at 305, per Mason CJ. It has also been said that the reproduction of a part of a work which has no originality will not normally be a substantial part of the copyright and therefore will not be protected: Ladbroke v William Hill at 293; 481, per Lord Pearce. As Mason CJ observed, in determining whether the quality of what is taken makes it a substantial part of the work, the importance of what is taken should be considered in relation to the work as a whole and, for that purpose, it is appropriate to consider whether it is an "essential" or "material" part of the work: Autodesk (No. 2) at 305."

Thereafter Sackville J applied the statutory notion of substantiality to Part IV copyright in the form of published edition of works upon the following principles:

"The general principle of copyright law is that copyright does not extend to ideas, but only to the expression of those ideas. But in the case of a published edition copyright, what is protected is not a particular collocation of words or musical notes, or a photographic representation. Published edition copyright protects the presentation embodied in the edition. This form of copyright, as the legislative history shows, protects such matters as typographical layout. However, it also protects other aspects of presentation, such as juxtaposition of text and photographs and use of headlines. In the present case, a considerable volume of evidence was adduced on the importance of layout and presentation to magazines and newspapers. In modern times, the work of typesetters is shared among subeditors, layout artists or designers and production editors. It is clear that layout is often extremely important in attracting readers to read a particular story or magazine. It is also clear that the choice of layout, type-size, headings and colour is a skilled operation.

Published edition copyright thus protects the product of skill, labour and judgment in presenting material in an edition. ...

In relation to a published edition, the quality of what is taken must be assessed by reference to the interest protected by the copyright. That interest, as has been seen, is in protecting the presentation and layout of the edition, as distinct from the particular words or images published in the edition. The quantity of the material reproduced, assessed by reference to the whole of the published edition, is relevant in determining whether what has been taken is a substantial part of the edition. But since it is the quality of the material taken that is the key issue, the quantity is not the only, nor necessarily the principal, criterion."

Subsequently at 420, his Honour explained the significance of what he encapsulated in the last paragraph above in terms of "the quality of what is taken...". I extract such explanation below:

"Nor is there a case in which there has been a significant interference with the interest protected by published edition copyright. This is not a situation, for example, where a competing publisher has utilised a distinctive feature of the copyright holder's layout or presentation for the purposes of a rival magazine or newspaper... The copying of the segment takes advantage of the publisher's layout and presentation and does so in circumstances in which it can be inferred that harm will be caused to the publisher's commercial interest in the whole of the published edition.

The copying undertaken in the present case was of discrete articles... There is no evidence as to when the copying took place... In these circumstances, it is difficult to conclude that there was any significant interference with the publisher's commercial interest in the whole published edition."

I interpose at this point to say that as will later appear, what the Full Federal Court here stated in relation to quality, and in particular the circumstance that "...what is taken must be assessed by reference to the interest protected by the copyright", has been endorsed by the Court of Appeal in England (see in particular the judgment of Mance LJ in the Marks & Spencer litigation subsequently discussed in [18] below).

The judgment of Sackville J thereafter referred with approval to the following passage from Copinger and Skone James on Copyright (13^th ed) Sweet & Maxwell 1994 p175:

"In deciding [the quality or importance of the part taken], regard must be had to the nature and objects of the selection made, the quantity and value of the materials used, and the degree to which the use may prejudice the sale, or diminish the profits, direct or indirect, or supersede the objects of the original work... In short, the question of substantiality is a matter of degree in each case and will be considered having regard to all the circumstances."

Mr Ricketson's commentary on Nationwide News, as contained in para 9.35 of his book first identified in this judgment in [12] above, is in the following terms:

"As Nationwide News indicates, a second relevant factor is the object or purpose which lies behind the taking, and the use which is made of the part taken. This is related to the statutory defences of fair dealing... but it should be noted that the latter are confined to specific purposes such as private study, criticism or review. In relation to issues of substantiality, a wider range of purposes may be taken into account. Thus, it seems that if the purpose of the copyist is the same as that of the author of the original, this may lead a court to hold that the part taken is substantial. This is particularly so where copyists are relieved of the necessity of using their own skill and labour, and are able to take a free ride on the efforts of the original author. In addition it seems that courts will readily reach the conclusion that a substantial part has been taken where this has been done... with an intention on the part of the copyist to take from the original work for the purpose of saving time and labour...."

16 In the context of the foregoing discussion of the object and purpose of the alleged infringer in taking part of the protected work or subject matter, Mr Ricketson's textbook (see [12] above) thereafter refers in the said para 9.35 to Joy Music Ltd v Sunday Pictorial Newspapers (1920) Ltd [1960] 1 All ER 703, where the defendant had taken what might otherwise have been a substantial part of the plaintiff's song, but had bestowed such mental labour upon what he had taken, and subjected it to such revision and alteration, as to produce an original work with a totally different purpose, namely a parody of the plaintiff's song. Mr Ricketson concluded at this point of his discussion of the relevance of object or purpose to substantiality with the following observation: "However it should not be thought that parody represents a separate or distinct defence or justification for what otherwise might be an infringing use... Anglo-Australian courts have tended to play down the parodic intent of an allegedly infringing use, although it may tip the balance in a case where all other factors are equal." In the course of the hearing, there occurred some discussion of the significance or otherwise of parody or burlesque in relation to the law of copyright, and reference was made to AGL Sydney Ltd v Shortland County Council (1989) 17 IPR 99, where Foster J found that the adaption by the Council of AGL's original television advertisement extolling the virtue of gas as a home power source, being an adaption which substituted an advertising promotion for electricity as a home power source in a parodic manner, infringed AGL's copyright as a literary and dramatic work within Part III of the Act. At 105 his Honour said as follows:

"[Counsel for the Respondent County Council] relies upon authorities which have been described as the parody cases... [however] a statement of principle which appears to have won general acceptance is that of Younger J in Glyn v Weston [1916] 1 Ch 261 at 268, namely: `that no infringement of the plaintiff's rights takes place where a defendant has bestowed such mental labour upon what he has taken and has subjected it to such revision and alteration as to produce an original result'... as it is of the essence of parody that the work parodied must be evoked in the mind of the hearer or viewer to fulfil the purpose of the parodist, the question must necessarily remain whether an infringement of copyright has occurred as a result of a substantial taking from the parodied work. This question must necessarily arise from the application of the provisions of ss 14 and 31 of the Act. The statute grants no exemption, in terms, in the case of works of parody or burlesque."

Such reference on his Honour's part to s 14 of the Act is of course to the statutory notion of substantiality therein stipulated, which brings to the fore once again the factors of quality and quantity, nature and objects of the selection made, essentiality and materiality etc referred to in the passages cited from authority in [14-15] above. In taking account of AGL, one needs to keep in mind the material considerations leading to his Honour's conclusion, such as "It is quite candidly acknowledged by the [Council] that it worked from the AGL advertisement in an attempt to develop a hard hitting answer to it", and "In any event, I seriously doubt that the second Shortland advertisement could properly be regarded as parody of the AGL work and advertisement in so far as a parody is defined as `a humorous or satirical imitation of a serious piece of literature or writing'. Earlier the Supreme Court of New South Wales in United Features Syndicate Inc v Star Newspapers Pty Ltd, an unreported decision made in proceedings No. 2637 of 1977 which is noted by Mr Lahore's Copyright Law in para 4.1.230, the foregoing approach in AGL was applied in circumstances where the parody of a cartoon strip, in which the original characters were reproduced in a different story with a different theme, was found nevertheless to have infringed copyright in a literary work by reason of the absence of such extent of revision and alteration as to have produced a result of originality.

17 It is appropriate that I should interpolate at this point to say something about the words "parody" and "burlesque", and what I consider to be their distinctiveness of meaning from the word "satire", and I do so in the particular context of my discussion of authorities in [16] above. The Macquarie Dictionary definitions of the three notions indicate that the essence of parody is imitation, consistently with the observation made in AGL as above extracted, and that burlesque is in the nature of vulgarising parody by way, for instance, of a vulgarising or debasing caricature, whereas satire is described as being a form of ironic, sarcastic, scornful, derisive or ridiculing criticism of vice, folly or abuses, but not by way of an imitation or take-off. Nevertheless that Dictionary's attribution of "... satirical imitation" has caused me to research further into the true or essential meaning of satire. In the work of a highly respected Australian academic, Professor Margaret Rose, published by the Cambridge University Press in 1993 and titled "Parody: Ancient, Modern, and Post Modern, the author distinguishes between both the Aristotle originated word parody, and the conceptually similar Italian originated word burlesque, on the one hand, and the Latin originated word satire on the other hand. Such distinction referrable essentially to imitation, though sometimes blurred at the edges by every day usage, assists an understanding as why parody (and burlesque) will not avoid copyright infringement, since imitation is in the nature of copying, in contrast to satire which involves the drawing of a distinction between the satirist and the author, composer etc. The distinction is of importance for the purposes of this litigation, to the extent that Ten may rightly be said to have used Nine footage for mainly satirical purposes or purposes similarly to satire, and to have done so in way that made it obvious that what has been taken originated from Nine and not from Ten. I observe incidentally that Copinger, supra at paras 7-34 and 7.44 use parody and burlesque implicitly as carrying similar connotations, though at para 9.18, the authors include "satire" in the heading "Parody, burlesque and satire", though without explicitly discussing satire otherwise than in note 92 thereto, where the following distinction is made, in my opinion correctly:

"In some cases a distinction has been drawn between cases where a work itself is parodied and cases of satire, where part of a work is used to provide a critique of individuals or institutions or society in general."

And after listing those cases, the authors proceed as follows:

"The broad definition of criticism which has been adopted in the United Kingdom which allows the reviewer to look `behind' a work...would seem to make it more likely that some cases of satire would also fall within the fair dealing defence" (the underlining is my emphasis).

Such para 9.18 of Copinger does however refer to parody as possibly relevant to fair dealing for purposes of criticism and review, which of course involves different considerations to those of substantiality.

18 After the commencement of the subject proceedings on 9 February 2000, the Court of Appeal in England handed down judgment in Newspaper Licensing Agency Ltd v Marks & Spencer PLC [2000] 3 WLR 1256; 48 IPR 229. This litigation, as in the case of Nationwide News, related to published edition copyright. Two members of the Court of Appeal (Peter Gibson LJ and Chadwick LJ) discussed Nationwide News predominantly by reference to the litigation at first instance (Nationwide News Pty Ltd v Copyright Agency Ltd (1995) 55 FCR 271) where Wilcox J rejected the submission that published edition copyright could be infringed by the reproduction of a single item in a newspaper or magazine. Ten's written submissions cited the following passages from the leading judgment of Peter Gibson LJ at 1265, 1267; 235,237-8:

"[26] The reasoning of the Judge [the United kingdom judge at first instance] therefore was more directed to a qualitative rather than a quantitative test of what is a substantial part. However, the primary submissions of both Mr Silverleaf and Mr Garnett were that the test was quantitative, having regard to the fact that the copyright is typographical arrangement copyright which is not dependent on originality. I agree that that is the most important factor, though I would not exclude from relevance an assessment of substantiality based on considerations of other than a mere measurement of column inches, such as the impression which the copied part makes on the eye of the reader. This may in turn depend on matters such as the prominence of the part in the edition: see the observations of Sackville J in the Nationwide case 136 ALR 272, 292.

...

[37] I turn then to how I would answer the second issue, bearing in mind that the copyright with which we are concerned is typographical arrangement copyright and that this requires a comparison of the parts copied with the whole published edition and a primarily quantitative assessment coupled with a consideration of the impact on the reader."

The judgment of Chadwick LJ was to similar effect, and I extract from the same below:

"(71) ...If the true analysis is that the only relevant "published edition" is the newspaper or magazine from which the article or report has been taken, then the question is whether the copying of the typographical arrangement of the individual article or report is properly to be regarded as the copying of a substantial part of the typographical arrangement of the newspaper or magazine as a whole.

(72) For my part, I would regard the test of substantiality in that context as primarily, if not exclusively, quantitative. But whether the quantitative comparison is confined to column inches of space occupied, or includes a word or line count or some other assessment of visual impact, is a question on which I prefer to express no view. The difficulties which, as it seems to me, are inherent in applying the test of substantiality to a work which consists of typographical arrangement contribute to my view that parliament is unlikely to have intended that to be the applicable test in relation to the infringement of copyright in the typographical arrangement of a compilation of individual literary works. Be that as it may, it is sufficient if I express my agreement with the conclusion reached by Peter Gibson LJ on this issue. If substantiality is the test, then I agree that we have not been shown any cutting which can properly be regarded as a substantial part of the newspaper or magazine from which it was taken." (at 1275-6; 245-6)

The judgment of Mance LJ adopted more closely the Full Federal Court's approach in Nationwide News regarding the way in which the notion of substantiality is to be assessed in relation to published edition copyright. After first observing at paragraph (103) that "Like Peter Gibson LJ, I would conclude that a substantial part is not copied merely because the quantity copied is more than de minimis, and that the test under s 16(3)(a) is probably best paraphrased by asking whether copying took place to an extent `worthy of consideration for the purposes of the Act'...", Mance LJ continued at 1284-5; 253-4 as follows:

"(104) Mr Garnett's next submission was that the test must in the present context be purely quantitative. But lack of creativity does not mean a lack of all characteristics apart from volume.... The typographical arrangement of a published edition looks to the typographical characteristics of the entire edition, including... matters of layout and appearance. In this respect, the appellants suggested that guidance was again to be found in the decision of the Nationwide case (and Mance LJ thereafter cited the paragraph of the Full Court's judgment commencing "In relation to a published edition..." extracted in [15] above).

(105) I would not myself endorse the reasoning in the Nationwide case if and to the extent that it is to be read as taking as a relevant test of substantiality whether the part copied was "an `essential' or `material' part of the work": see at IPR 71; ALR 290, citing Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 305; 25 IPR 33. At least the first word may, as it seems to me, set the test too high. However, the Federal Court's reasoning appears to me correctly to identify the sense in which the "quality" of the material copied should be considered. It is not the quality of the information, comment or other contents in any article that matters. Typographical arrangement copyright is concerned with presentation or appearance. What matters is the extent to which the typographical arrangement is reproduced, both in terms of volume and in terms of appearance.

...

(107) It is, in my view, relevant to go back to the purpose for which, or the mischief in the light of which, this type of copyright was introduced. What was in mind was the copying, or "pirating", of publications by unscrupulous competitors. It is appropriate to have that in mind when considering the extent to which the appellants' activities should be regarded as involving the copying of "any substantial part" of any published newspaper from which they copied articles. In no case, which we were shown, can it be said that the appellants' copying reproduced anything that could be regarded as either resembling the newspaper concerned or having newspaper-like qualities. In some cases, it seems clear that, the copying was, if not trivial, then barely more than trivial. ...As to the reproduction of articles involving larger chunks of text - rearranged though they commonly were when copied onto an A4 page - the appellants gained thereby commercial advantages for themselves, but they cannot in any realistic sense be said to have done so as competitors of the respondents. They did not create anything which could be regarded as resembling any, or in my view, any significant part of the relevant newspapers viewed as an entire publication. Moreover, any use that the appellants made of such newspapers' typographical arrangement was at best incidental or very subsidiary to the appellants' primary purpose, which was to communicate the information in the articles to their staff. In the circumstances I do not think that it is right to regard the appellants in the present context as having copied a substantial part of any of the newspapers involved. ..."

19 All of the authorities to which reference has thus far been made, with the exception of Nationwide News and Marks & Spencer, have been concerned with literary, dramatic, musical or artistic material, and thus "works" within Part III of the Australian Act. The assistance to be derived from authorities referrable to Part III works is the gaining of an appreciation of the extent of modification or qualification required to be made in the application of the dichotomy of quality and quantity to Part IV "subject matters", and in particular of course television broadcasts, if that dichotomy is to substantially survive in the light of the approach of Chadwick LJ in Marks & Spencer (see para 72 of his judgment extracted in [18] above). Nationwide News and Marks & Spencer both related to published edition, the copyright addressed by s 88 of Part IV of the Australian Act. I have not yet referred to the Part IV subject matter of cinematograph films which had initially, until the British Copyright Act 1911, enjoyed protection initially as a series of photographs and subsequently as literary or artistic works where possessing an original and personal character. Thereafter under that legislation, cinematograph film copyright gained additional statutory protection as dramatic or literary works, where an original character could be imputed: Copinger and Skone James on Copyright (14^th ed), Sweet & Maxwell 1999, Vol 1 para 3-55-6. The now Part IV copyright subject matter of sound recordings first gained statutory protection under the 1911 Act as musical works, without the requirement for demonstration of originality "as such": Copinger (14^th ed), supra at para 3-105. The critical issue which must here be addressed is the manner in which, and the extent to which the historical notion of substantiality subsequently embodied in s 14(1)(a) of the Australian Act should accommodate the more recently recognised Part IV copyright relating to television broadcasts, in the light of the accommodation of that notion which has taken place in relation to other Part IV subject matters. Chapter 7 of Laddie and Prescott and Ms Vitoria The Modern Law of Copyright and Designs (2^nd ed) Butterworths 1995 addresses "... the special sort of copying which protects the signals emitted by broadcasts and the items in a cable programme" (in para 7.1). The authors further develop this subject in para 7.3, after making the observation that "Television and sound broadcasts received no independent copyright protection under the pre-1956 law" as follows:

"Because, in many instances, at that time, sound or television broadcasts were transmitted live they were of an ephemeral nature and therefore could not be squeezed into one of the then existing categories of copyright subject matter, all of which required that the subject of copyright should be reduced to writing or some other tangible form."

Thereafter the authors explain, without controversy, what is sought to be protected by the conferral of copyright in favour of television broadcasts:

"... it is the `message' carried by the broadcast waves - the visual images, sound or other information... and not the waves as such which may be regarded as temporary packaging for use in transit.... But the `message' carried by broadcast waves is nothing more nor less than what is encoded by the precursor signal used to modulate the carrier wave at the broadcasting station. It is submitted that to make sense of these matters one must have recourse to the rather metaphysical concept that the substance of the `work' -what everyone is interested in sending or receiving - is the `message', the wireless telegraphy waves are the outward accident thereof. Put in more practical terms, what is protected by broadcasting copyright are the visual images, sounds or other information but copyright cannot arise unless the author engages in the act of transmitting these by wireless telegraphy, this being a condition precedent to the acquisition of the right. (I interpolate here to refer again to the reference to "wireless telegraphy" in the s 10(1) definition of "broadcast" in the Australian Act extracted at [6] above). It is, however, a mistake to suppose that the visual images, sounds or other information enjoy broad protection in the same way as an artistic musical or literary work. For instance, in the case of sound broadcasting it is only the sounds actually heard in the broadcasting studio which are protected, not the underlying intellectual content and so on...."

The authors thereafter cite the decision of this court in CBS Records Australia Ltd v Telmark Teleproducts (Aust) Pty Ltd (1987) 9 IPR 440, where it was held that the copyright in a sound recording could not be infringed by the making of a `sound alike' record, being a close imitation of a performance on an existing record, using alternative performers. The reason provided by the Court was that what was protected by this kind of copyright were the actual sounds as embodied in the recording, which actual sounds had not been taken by the alleged infringer. Bowen CJ said in this regard as follows:

"... [t]he section [referring thereby to s 87(b) extracted at [7] above] is speaking of the actual sounds broadcast being taken and not speaking of someone producing an imitation by the use of independent performers of broadcast sounds."

20 The said authors of The Modern Law of Copyright and Designs continue in para 7.32 thereof in relation to broadcast copyright, still without controversy, as follows:

"One must bear firmly in mind that this type of work may be copyright even though it is wholly devoid of originality. The statutory monopoly arises even though the author expended no mental skill, labour or ingenuity in its preparation. In the case of copyright works of the traditional type, eg original literary works, originality is highly material to the question of infringement by altered copying... It is submitted that it is the actual visual images or sounds which are protected, and not some initiation or reproduction thereof produced by collateral means... The underlying creative content (eg the script or the music) may well be protected aliunde for instance, as an original literary or musical work. But this is a different thing, and involves questions of originality."

However the following conclusion to the authors' Chapter 7, contained in para 7.34, brings into focus the main area arising for present debate, in terms which Nine would adopt in favour of its case as to substantiality:

"Partial taking

7.34 ...the Act does stipulate that the copyright in a broadcast or cable programme may be infringed by the copying of a `substantial part'... How lengthy must an extract be before it counts as a substantial part for this purpose? Whilst no absolute standard can be laid down, the Act states that in relation to a film, television broadcast or cable programme, `copying' includes making a photograph of the whole or any substantial part of any image forming part thereof. This strongly suggests that the taking of even a single frame of a film (or the equivalent amount of a TV broadcast) may be an infringement. Yet in an average feature film a single frame forms less than 0.001 per cent of the total. Sheer length, then, is unlikely to be conclusive. Perhaps a practical test is to enquire whether what is taken has any discernible market value. A poster would have. A short burst of sound engendered while `channel hopping' on a receiver in a shop would not. It may be that anything which is not de minimis would be regarded as `substantial'."

The foregoing view of the authors as to "partial taking" of a television broadcast copyright addresses s 17(4) of the British Copyright Designs and Patents Act 1988 (UK), which reads as follows:

"Copying in relation to a film, television broadcast or cable programme includes making a photograph of the whole or any substantial part of any image forming part of the film, broadcast or cable programme."

Such statutory provision may be contrasted however with the provisions of s 101(4) of the Australian Act (see [5] above), which addresses breach of television broadcast copyright alone, and which, by its employment of the words "... the visual images and sounds comprised in the broadcast", incorporates the notion of plurality of visual images, in contrast to the words "any image" of the above 1988 UK legislation. Such UK 1988 legislation relating inter alia to television broadcast copyright may similarly be contrasted with s 14(4) of the 1956 UK legislation, which is reproduced in [21(ii)] below. I will return later to the text of certain of both UK statutory provisions.

21 Each party has referred me to the content of materials extrinsic to United Kingdom and Australia legislation, in the form of reports of law reform bodies and second reading speeches, in support of submissions as to the construction of the relevant copyright statutory provisions enacted here and in the United Kingdom since the introduction of television broadcasting. As to the justification for so doing in relation to extrinsic material of Australian origin, see generally CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at [408]; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 99 and 111-113 and Schott Musik International GMBH & Co v Colossal Records of Australia Pty Ltd (1997) 75 FCR 321 at 323-4 per Wilcox J, at 328-333 per Hill J and at 333-6 per Lindgren J. I would include within the general purview of those authorities the extrinsic use of United Kingdom extrinsic materials, by reason of the leading role adopted in the United Kingdom to copyright reform after the introduction of television broadcasting, which was largely adopted in Australia in circumstances which were similarly occurring in Australia, as will shortly be traced. Such content of extrinsic materials are extracted below, to the extent they have been cited to me in address:

(i) Prior to the enactment of the United Kingdom copyright legislation of 1956, the President of the Board of Trade presented to the Parliament in October 1952 the Report of the Copyright Committee chaired by Mr H.S. Gregory ("the Gregory Committee"), which contained the following:

"93. ...

Further, it can no longer be assumed that the reproduction of visual effects must be preceded by photographs, and we are given to understand that even now it is possible to record on a magnetic tape a spectacle which can be reproduced visually as a television programme. Accordingly, in drafting provisions relating to records, cinematograph films and such matters, we consider that the wording adopted should have regard to the end-product (eg sound or visual representation) rather than to the means whereby these effects are produced.

...

116 We now turn to the question whether a new right should be given to the broadcasting organisations in their own programme, additional to any copyright there may be in the individual items which go to make up those programmes, and we deal at this stage solely with a right to prevent other persons from copying the programme whether by way of again broadcasting a programme (in the event of there being more than one broadcasting authority in the future) or by way of recording such programmes for subsequent performance in some other way.

117 On the question of copyright in the ordinary sense, the position of the B.B.C., as we see it, is not, in principle, very different from that of a gramophone company or a film company. It assembles its own programmes and transmits them at considerable cost and skill. When using copyright material it pays the copyright owner, and it seems to us nothing more than natural justice that it should be given the power to control any subsequent copying of these programmes by any means. It has been represented to us that the absence of such a right has already caused considerable embarrassment to the B.B.C. Apparently, indifferent reproductions both of sound and television programmes have been made, and sold to the public, to the detriment alike of the Corporation and of those taking part....

118 There is one comparatively small matter relating to broadcasting to which we must refer. It is the practice of the BBC, and we believe of all broadcasting authorities, to make records of their programs, sometimes before the performance is broadcast, sometimes in the course of broadcasting, for subsequent use in repeat programmes. Where copyright material is broadcast, however, the making of such records would infringe the mechanical rights of composers or authors. We accept that a procedure of this kind is essential and we note that the Brussels convention (Article 11(b)) accepts that countries of the Berne Union may determine regulations for what is described as `ephemeral' recordings made by a broadcasting body by means of its own facilities and used for its own emissions."

I would pause to record here the references to the "programmes" of television broadcasters used in paragraphs 93 and 116 to 118 above in the context of the broadcast copyright being proposed for introduction. The word "programmes" was not however incorporated as such into the television broadcast provisions of the ensuing UK 1956 legislation, except in the context of references to cable television.

(ii) In the result, s 14(1) of the Copyright Act 1956 (UK) (since repealed) stipulated that subject to the succeeding sub-sections, copyright should subsist in every television and sound broadcast made by the B.B.C., and sub-sections (4) and (6) in particular stipulated as follows:

"(4) The acts restricted by the copyright in a television broadcast or sound broadcast are:

(a) in the case of a television broadcast in so far as it consists of visual images, making, otherwise than for private purposes, a cinematograph film of it or a copy of such a film;

(b) in the case of a sound broadcast, or of a television broadcast in so far as it consists of sounds, making otherwise than for private purposes, a sound recording of it or a record embodying such a recording;

(c) in the case of a television broadcast, causing it, in so far as it consists of visual images, to be seen in public, or, in so far as it consists of sounds, to be heard in public, if it is seen or heard by a paying audience;

(d) in the case of a television broadcast or of a sound broadcast, re-broadcasting it or including it in a cable programme.

...

(6) In relation to copyright in television broadcasts, in so far as they consist of visual images, the restrictions imposed by virtue of sub-section (4) of this section shall apply to any sequence of images sufficient to be seen as a moving picture; and accordingly, for the purpose of establishing an infringement of copyright, it shall not be necessary to prove that the act in question extended to more than such sequence of images."

(iii) The Report of the Copyright Law Review Committee 1959 in Australia subsequently chaired by Mr J.A. Spicer (the Spicer Report) occurred in the context of the 1956 United Kingdom legislation enacted pursuant to the Gregory Report. Chapter XVIII related to "Sound And Television Broadcasts". The following provisions are of potential relevance:

"286 ... However there can be no doubt that broadcasting authorities are properly entitled to protection against the display in public to a paying audience of the programme received....

287 In the absence of express provisions giving copyright in broadcasts, the broadcasting authority could obtain protection by recording or filming its broadcast and rely upon the copyright thus arising in the record or film. In most cases this would doubtless be done. However, the protection should not be dependent upon this course being followed.

288 The conclusion we reach, therefore, is that provision should be made, either in the copyright law or in some other appropriate legislation, for the protection of sound and television broadcasts against the kind of pirating envisaged by section 14 of the 1956 Act.

295 It seems to us, having regard to the provisions of section 14(6) that under the 1956 Act, a person may, without committing an infringement of the broadcasting copyright, take as many photographs of a television broadcast as he wishes provided no two photographs constitute a sequence or images. We can see no good reason for limiting the protection to this extent and recommend that the taking of a photograph of any part of a television broadcast should be a restricted act if it is done otherwise than for the private use of the person taking the photographs."

I would draw attention to the use of the word "programme" in paragraph 286 above.

(iv) The Second Reading Speech of the Attorney General Sir Nigel Bowen, relating to the introduction of the Australian legislation to the House of Representatives, contained the following:

"There is no copyright under the existing law in a sound or television broadcast. There are provisions in the Broadcasting and Television Act which prohibit the broadcasting by one person of programmes transmitted by another without the permission both of the original broadcaster and of the Broadcasting Control Board. The Bill establishes a new category of protection for sound and television broadcasts. It provides that copyright, in relation to a broadcast is the exclusive right to make a cinematograph film of the broadcast in the case of a television broadcast, to make a sound recording of the broadcast and to re-broadcast the broadcast. These provisions are contained in clause 87 of the Bill."

Clause 87 of the Bill became of course s 87 of the Australian Act (see again [7] above for the full text thereof). Again I observe the use of the word "programme(s)".

22 Before recording and addressing the respective submissions of the parties in relation to the Nine case in chief as to breach of s 87(c) of the Act concerning television broadcasting copyright generally, it is appropriate for me to summarise the present state of authority thus far identified in relation to the subject of statutory substantiality in the law as to infringement of copyright, to the extent that the same may have some bearing upon the operation of s 14(1))(a) of the Australian Act in relation to television broadcast copyright. Both parties acknowledge that there is an absence of authority directly on point, and that the present proceedings raise novel issues concerning television broadcast copyright and infringement thereof.

23 In relation to Part III copyright works, the quality of what has been taken will normally dominate in significance in comparison with the quantity of what has been taken, such notion of quality being sometimes paraphrased in terms of the importance or the essence or the materiality of the part taken in relation to the whole of the protected work, whatever it may comprise. The nature and degree of protection of copyright in such works was developed at common law prior to the UK 1911 legislation, and the reason for the provision of the protection which evolved at common law was related to the degree of originality in the expression of the work. Cinematograph films attracted copyright protection following upon their later emerging technology, as did sound recordings, and the concept of originality played a part in the development of such protection. There is no Australian authority bearing directly on the scope of Part IV protection for television broadcasting, but in the context of Part IV protection for published edition, the Full Federal Court in Nationwide News [15] above has postulated an emphasis on both quality and quantity, either of which may be the principal criterion in a particular case (see again the expression "... the quantity is not the only, nor necessarily the principal criterion" at 419 of the Judgment), subject nevertheless to the need to recognise that "the quality of the material taken... is the key issue" (again at 419 of the Judgment). Furthermore the Full Court said that such appraisal of substantiality by reference to the dichotomy of quality and quantity should be "... assessed by reference to the interest protected by published edition copyright", namely "... the presentation and layout of the edition as distinct from the particular words or images published in the edition" (at 418), and ultimately in each particular case, the assessment will boil down to matters of degree. Moreover the Full Court emphasised the occurrence of infringement where a competing publisher has utilised a distinctive feature of the copyright holder's layout or presentation for its rival publication, and has done so in circumstances in which it can be inferred that harm will have been caused to the publisher's commercial interest in the whole of the published edition. Such approach to the interaction between quality and quantity so postulated in Australia by Nationwide News in relation to published edition has been supported in substance by Mance LJ in the published edition copyright litigation Marks & Spencer, but the other two members of the Court of Appeal in that case, particularly Chadwick LJ, would place the weight of their emphasis on quantity. In addition, by adopting the passage from Copinger (13^th ed) also extracted in [15] above, Nationwide News postulated a second factor relevant to the statutory principle of substantiality in its application to published edition copyright, namely the object or purpose of the alleged infringer in undertaking the conduct of taking, object or purpose in such context operating beyond the area of the defence of fair dealing as appears from the reference to "object or purpose" in the passage cited in Nationwide News from Ricketson in [15] above. Some measure of support for that additional factor as to purpose or object of taking is to be also found in the judgment of Mance LJ in Marks & Spencer (see the reference to "primary purpose" in para 107 of his judgment extracted in [18] above). The extent to which the foregoing approaches to the nature and dimension of published edition copyright should apply in an analogous way to Part IV television broadcast copyright remains of course to be determined in this judgment. Authorities in England and Australia would add the qualification, at least in relation to Part III works, that copying for objects or purposes of parody (and its related concept burlesque) do not absolve an infringer, in the absence of the infringer's input of such skill and labour such as to constitute the otherwise infringing work as an original work [16-17], but for the reasons I have additionally indicated in [17] above, I do not think that such qualification applies to satire, because satire, in contrast to parody or burlesque, does not in principle or at least as a general rule involve imitation of other work, but on the contrary the inherent recognition thereof. In the case of television and sound broadcasts, where like published edition, originality is not required for the establishment of copyright, and where the subsistence of copyright depends mainly upon technical considerations related to production, there remains to be interpreted by analogy the extent of interaction, if any, between quality and quantity. That question will shortly be addressed in the light of the decision concerning cinematograph film copyright (another Part IV copyright) in Spelling Goldberg to be discussed in [28(iii)] below, upon which Nine has placed reliance in its submissions on substantiality.

Nine's submissions on substantiality

24 Nine's written submissions commenced with the following general propositions of legal principle, implicitly upon the basis that the same applied to television broadcast copyright:

(i) Whether the copyist has taken a substantial part of the original depends much more on the quality, rather than the quantity, of the material taken;

(ii) The reproduction, performance or, as in the present case, re-broadcasting and copying, of a quantitatively small but nonetheless material part of a work may constitute infringement;

(iii) Whether or not [Ten] has taken a substantial part of the original broadcast is principally a question of fact, being necessarily a question of degree to be judged having regard to all the relevant circumstances of the case;

(iv) In considering the issue of substantial part, the Court may be guided by the sometimes designated "rough" working test advanced by Peterson J in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 to the effect that "what is worth copying is worth protecting".

These principles have of course been adopted in the context of Part III copyright protection. I have already referred to the above propositions (i), (ii) and (iii) in the course of my discussion of authorities in [12-15] above. Nine then referred in particular to Fernald v Jay Lewis Productions Ltd [1975] FSR 499, which involved literary or dramatic features derived from four pages out of a total of 126 pages of a book, and to Hawkes & Son (already mentioned in [13] above) involving twenty seconds of a marching song "Colonel Bogey", where Lord Hanworth MR said at 604:

"...when one deals with the word `substantial', it is quite right to consider whether or not the amount of the musical work that is taken is so slender that it would be impossible to recognise."

Authorities are replete with reference to proposition (iv) above, but the same tends to beg the ultimate question to be resolved in each case.

25 Nine pointed to the circumstance that "... in relation to every source program there is evidence of significant investment by Nine in the organisation of the program in the case of those produced by Nine, and in the purchase of rights or the commissioning of programs in the case of those produced by others", and to the further circumstance that Nine and Ten are competitors in the same market. I do not understand there to be any disagreement on the part of Ten with the generality of such propositions. In similar vein, Nine continued rhetorically: "We invest a lot of money in it. Have they got a commercial interest in being able to present TV using footage without having to pay for it, yes, where that does but help their bottom line. Do we have a commercial interest which competes with that, yes, plainly we do"; "Are they using our footage in a way which competes with us and hurts us - plainly they are"; and "... our commercial interest is winning the rating battle. Do they harm our commercial interest by pursuing a precisely competitive personal interest by means of filling up their program in part with [our] footage, yes." The reference to "hurts us" picks up the reference to causing harm by a rival newspaper contained in Nationwide News but I have to observe that the assertion as to "filling up their programme in part with [our] footage" tends to overstatement.

26 Nine nevertheless disputed in the course of submissions the existence of any "useful analogy" in relation to the circumstances involved in Nationwide News, which, as has been already pointed out in [15] above, related to the Part IV copyright of published edition as distinct from the Part IV copyright of television broadcasting. However the observations of principle of the Full Court in Nationwide News extracted in [15] are in my opinion clearly capable of application in an analogous way to issues of substantiality involved in television broadcast copyright. There is more than an insignificant degree of affirmative comparison between what is protected by published edition copyright for instance in the form of presentation and layout of a newspaper, and what is protected by television broadcast copyright by way, for instance, of the presentation of television programmes, for example, on the subject of current affairs. Indeed Nine contended that there is i involved skill and expertise on its part in the presentation of its programmes.

27 Nine thereafter advanced the critical submission on its part that any of the visual images comprised in a television broadcast is an infringement of the copyright in relation to that broadcast, and in so doing advanced the following propositions in sequence:

(i) That para 295 of the Spicer Report, extracted at [21(iii)] above, constituted the recommendation which "obviously led to section 25(4)(a)" of the Act; the recommendation of that paragraph stated that "... the taking of a photograph of any part of a television broadcast should be a restricted act if it is done otherwise than for the private use of the person taking the photographs".

(ii) That the use of the words "any of the visual images" and "any of those images" in s 25(4)(a) govern and control the meaning of "visual images" in s 87(a).

(iii) That s 25(4)(a) provides the following guidance or direction:

First as to what constitutes the so-called "the source broadcast";

Secondly as to the extent of the protection afforded by broadcast copyright;

Thirdly as to the approach which the Court should adopt on the question of "infringement by re-broadcast which is consistent with infringement by copying as provided for in section 25(4)(a)"; the reference to "re-broadcast" was of course to s 87(c) of the Act.

(iv) That it would be unlikely that there would be a different operation for s 87(a) from that of s 87(c) so far as the import of "visual images" was concerned, notwithstanding the absence of explicit reference thereto in s 87(c), and that since s 87(a) is to read as applying to "any of the visual images" by virtue of s 25(4)(a), as above stated, so also should s 87(c) be implicitly read and construed.

(v) That the s 10(1) television broadcast definition "... just says visual images [and] it doesn't use the word program. The whole thing becomes clear, ie that what is being protected are signals which are sufficient in quantity and number such that one can recognise in their product a visual image. That's certainly a high point of our case".

28 In support of the foregoing approach of Nine to the operation of s 25(4)(a) of the Act, which I should point out is not an operational but an interpretative provision (see again the full text thereof extracted in [7] above), Nine thereafter set out the following critical steps in furtherance of its case on substantiality in relation to television broadcasting:

(i) The s 10(1) definition of "television broadcast", specifying as it does "visual images broadcast by way of television together with any sounds broadcast for reception along with those images", does not thereby identify any number of images or a cut-off point, or a requirement that the visual images constitute a discrete or complete story or programme.

(ii) Section 25(4)(a) implies in effect that to copy of "any of the visual images comprised in a broadcast" is an infringement, which, so the submission continues, must be so, because each visual image which is broadcast constitutes a television broadcast, and each is subjected to the "extraordinary process of conveyance known as broadcasting", and further (as already indicated in [27(iv)] above) because s 25(4)(a) is logically designed to ensure that infringement by copying a broadcast is in no way "dimensionally different" to infringement by re-broadcasting.

(iii) The decision of the UK Court of Appeal in Spelling Goldberg Productions Inc v BPC Publishing Ltd [1981] RPC 283 found that to constitute copying of a part of a cinematograph film within s 13(10) of the Copyright Act 1956 (UK), it was enough that there had been a single still photograph made from the cinematograph film, because a single frame of the film was part of a "sequence of images" constituted by the film; s 13(10) of such 1956 legislation contained in that regard the following definitions:

"In this Act -

`cinematograph film' means any sequence of visual images recorded on material of any description (whether translucent or not), so as to be capable by the use of that material -

(a) of being shown as a moving picture, or

(b) of being recorded on other material (whether translucent or not), by the use of which it can be so shown.

..."

Moreover the court in Spelling Goldberg also held that the substantiality provisions of the UK 1956 Act did not apply to the s 13(10) definition of a cinematograph film, but that if the same did so apply, a sensible meaning could be given to the "substantial part" of a single frame, since the whole of a single frame may not be taken by an infringer in a particular case, but merely "a split screen". I should here cite from the judgment of Buckley LJ (at 296-297) the following passage:

"Indeed, as a matter of ordinary use of language, I should have thought that it was very difficult indeed to say that a single frame taken out of, or selected from, all the frames contained in a cinematograph film was not itself part of that film. This view of the matter does not seem to me to be surprising when one remembers that until 1957 every single frame in a film constituted an individual photograph for copyright purposes, and as a matter of construction of the language, as well as a matter of giving the language its ordinary sense as distinct from any special sense that can be derived from close analysis of the provisions of the Act, I reach the conclusion that a single frame from a film is a part of that film within the meaning of the definition of `copy'."

For comparison however, I intrude in this present context the definition of "cinematograph film" contained in s 10(1) of the Australian Act:

"cinematograph film means the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing:

(a) of being shown as a moving picture; or

(b) of being embodied in another article or thing by the use of which it can be so shown;

and includes the aggregate of the sounds embodied in a sound-track associated with such visual images."

I draw attention to the references in the Australian definition to "the aggregate of the visual images embodied in an article or thing", and "the aggregate of the sounds embodied in a sound-track associated with such visual images", both of which are absent from the former s 13(10) Copyright Act 1956 (UK) statutory provision in relation to which Spelling Goldberg was decided, which uses the expression "any sequence of visual images".

(iv) Nine next pointed to the absence of any reference to the aggregation of visual images in the Australian statutory definition of "television broadcast" contained in the s 10(1) definition thereof, by way of contrast to the s 10(1) definition of cinematograph film, and further pointed to the contrast between "sound broadcast" and the s 10(1) definition of "sound recording" set out below:

"... means the aggregate of the sounds embodied in a record."

As to the respective legislative definitions of "copy in relation to a cinematograph film", the same are set out below for comparison for further insight into the reasons for judgment in Spelling Goldberg:

1956 UK Act : "... means any print, negative, tape or other article on which the film or part of it is recorded" (s 13(10)).

1968 Aust Act : "... means any article or thing in which the visual images or sounds comprising the film are embodied" (s 10(1)).

The differences between the definitions cited immediately above caused the following observation to be made in Nationwide News at 420:

"Mr Nicholas also cited Spelling Goldberg... where it was held that one frame of a cinematographic film amounted to a substantial part of the film. But the case turned on the definition under the Copyright Act (UK) of a `copy' of a cinematographic film. That definition has no counterpart in the Act. The case is also not helpful in the present context."

No definition of "copy" appears however in either the 1956 UK Act or the 1968 Australian Act in relation to a television broadcast, as distinct from a cinematograph film.

(v) The skill, industry, expensive equipment and infrastructure involved in the creation and projection of broadcast images (a submission already paraphrased in the extracts set out in [25] above). I observe that comparable observations were made in Nationwide News by reference to the published editions of The Australian Newspaper, in the context of discussion of the notion of quality.

(vi) The statutory notion of substantiality still has a role to play in relation to television re-broadcasting, even if every single visual image is protected in accordance with Nine's primary submission; leaving aside the suggestion of Buckley LJ in Spelling Goldberg in [28(iii)] above of part of a single visual image frame (ie split screens) in relation to cinematograph copyright, Nine instanced the hypothesis of a television broadcast without the taking by the infringer of any accompanying sound.

I would observe at this point that if Nine's submission in (vi) above be correct, it may well follow by analogy that substantiality in relation to sound broadcasting would be fulfilled in relation to each and every individual sound (see again the definition of "sound broadcast" in [5] above), a surprising hypothetical consequence. But in any event, I find this preferred submission of Nine as to copyright protection for each single visual image pursuant to s 87(c) to have an unrealistic and impractical foundation at least by reference to ss 25(4)(a) and 87(a), for the reasons that in the absence of a visual image being filmed or otherwise copied within s 87(a), a visual image which has been broadcast is merely ephemeral or evanescent.

29 Alternatively to Nine's primary submission reflected in [27-28] above that television copyright extends to each and every visual image of a television broadcast, Nine advances the following submissions:

(i) A television broadcast relates to the whole of each programme, or else the whole of each segment of a programme where the same breaks down into segments; it would be a question of fact in each case to identify the existence of any such segments; moreover there may be many substantial parts of a programme or a segments of a programme, as in the case of other copyright work. For example, following Nine programmes the subject of the proceedings were submitted as divisive into segments namely, Today, A Current Affair, Who Wants to be a Millionaire?, Australia's Most Wanted, The Midday Show and Sunday.

(ii) The period of time involved in assessing substantiality may come "... down to the second, the extent of each piece of footage. The footage is used to punctuate the show. Seconds in TV are important. Ratings are decided on 15 minute intervals. People leave, people turn off, they get bored. The man in the street is affected by seconds in TV" (transcript p378).

(iii) Material to (i) and (ii) above are the established principles of copyright law that identification of what is the subject of copyright is usually a question of fact, and Nine illustrates by reference to the principles that literary copyright may exist independently in each of the chapters of a book (see Universal Press Pty Ltd v Provest Ltd (1989) 87 ALR 497 at 501-503), or the taking of a chapter of a book may equate to the taking of a substantial part of the copyright subsisting in the book as a whole literary work, notwithstanding that each chapter is a complete story in itself: University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 at 11 and 20.

30 Further as to Nine's case that Ten has taken a substantial part of each broadcast, Nine points to the following circumstances as having been established from the Nine and Ten footage respectively in evidence:

(i) Ten has sought to "suck the marrow from the bone" of the Nine programs involved (Wainwright Securities Inc v Wall Street Transcript Corp (418 F Sup 620 at 625 (SDNY 1976)) (affirmed on appeal 558 F 2d 91 (2^nd Cir 1977)); Nine asks rhetorically "...why should [Ten] be able to parasitically feed"?

(ii) The Nine footage taken must have been regarded by Ten as the best parts to show in the course of Ten's "fast paced show", and each part so taken has been in the nature of highlights; consequently there has been taken "a substantial part within s 14(1)(a) of the Act of each program or each relevant segment of each program, if what has been so taken constituted a "television broadcast" within s 10(1)"; in this regard, Nine has referred to the transcript of certain cross-examination of Mr Hirsch, the chief executive officer of Working Dog Pty Limited which has been the producer of The Panel (see [2] above), commencing at page 190, the content of which I will extract below in order to give a reasonable comprehension of the present submission:

"Mr Bannon SC: You see the golden rule is for tapes to run no longer than 20 seconds, if possible?...

Mr Hirsh: No, 60 seconds.

Mr Bannon SC: Here it says 20 seconds?...

Mr Hirsh: Yes, about 60 is tops but we average much less than that.

Mr Bannon SC: Well, as far as you were concerned its important that the footage as you say contains any footage which is shown on the show, its important that it contains no fat, is that right?...

Mr Hirsh: Yes.

Mr Bannon SC: And the footage which is the essential part of whatever it is you want to show?...

Mr Hirsh: Yes.

Mr Bannon SC: If its footage taken from some other show or program you want to make sure that the footage that you show is the best and most interesting bit for the purposes you have on the show?...

Mr Hirsh: Yes.

Mr Bannon SC: We've seen in this courtroom some excerpts of various bits of footage shown on The Panel and may we take its your view that a lot of the footage which is shown on The Panel provokes a great deal of mirth both in the studio audience and the viewing audience at home?...

Mr Hirsh: Sometimes, in the majority of times, yes.

...

Mr Bannon SC: ... In other words, you don't instruct your researchers to go [and] look for dull pieces of footage, do you?...

Mr Hirsh: We don't give instructions to our researchers as such, whether its dull or boring or funny is not really relevant.

Mr Bannon SC: But so far as you're concerned you regard the show as an attempt to provide a snappy, pacey form of entertainment to a demographic within the 16 to 39 bracket?...

Mr Hirsh: An element of our show is entertainment, yes."

The assertion that the Nine footage must have been regarded by Ten as the best parts for it to televise by way of the Panel Segments begs the question as to whether Ten's object or purpose in re-broadcasting the same is identical to or different from Nine in broadcasting the same in the first place. Ten's case would be that it selected for the most part what it considered apposite for the object ort purpose of satire, comedy, or light entertainment (see again Nationwide News at [15], [17] and Mance LJ para 107 reproduced in [18]).

31 Nine seemed initially to accept in principle, in the context of its alternative submissions in [29] above as to measurement by programme in lieu of a single visual image, that the object or purpose of a television broadcaster in re-broadcasting another television broadcaster's "visual images" may be relevant in assessing whether particular visual images comprised a substantial part of a programme. However Nine would characterise Ten's object or purpose involved in any of its copying of Nine's programmes as referrable only to income derivation, rather than to any issue of substantiality in the law of copyright: I further extract below from Nine's submissions as follows:

"Here the object of the copying was to take advantage of precisely how our broadcast was shown... They wanted to show how our broadcast was shown... Here the very thing is, if one takes their statement of what they wanted to do in The Panel show... was [to] present what had appeared on television in the form in which it had appeared on television for whatever purpose they will now say, they did it." (transcript p327)

And in similar vein:

"... here's our commercial interest, that is to fill up TV screens with footage which people want to watch. Here's their commercial interest, it's exactly the same. They don't have the footage we have. Some of the footage we have is terrific to watch and it may be terrific to watch for all sorts of reasons but in terms of footage per se it has a value and the value to both of us is the same." (transcript p335)

As was pointed out however by Mance LJ in Marks & Spencer in para 207 extracted in [18] above, the notion of object or purpose, where used in the context of the principles concerning substantiality in relation to published edition, is not concerned with the gaining of commercial advantages by the infringer, but rather with the use which is made by the alleged infringer.

Subsequently in response to my questions as to the purpose of Ten's copying of allegedly substantial parts of Nine's television broadcasts, and in particular Ten's purpose in using the footage of Nine, was different to the purpose of Nine in broadcasting the same in the first place, Nine submitted in response as follows (transcript p379):

"That is a distinction which is very difficult to relate to the law of copyright. If they're saying watch this, enjoy it as a visual image, what's the difference? There's an assumption that some of their viewers or many of their viewers will have the same in many cases lack of taste that they have...."

Enjoyment however of a visual image per se, and enjoyment of for instance a satirical play upon part of an original television programme having a melodramatic nature, may well involve a relevant difference in terms of object or purpose.

Ten's submissions on substantiality

32 Ten commenced the substance of its submissions with reference to the Gregory Report, referring in particular to paras 117 and 118 thereof (extracted at [21(i)] above) in the course of tracing relevant legislative evolution to the enactment in Australia of s 87 of the Act. Ten then referred to the Attorney General's introduction of the Copyright Bill to the Australian Parliament containing the definition of "television broadcast" extracted in [6] above, being a definition identical in terms to s 14(10) of the UK 1956 Act, and submitted that plurality of the words included within the s 10(1) definition of "television broadcast" namely "visual images" and "along with those images" did not provide support for Nine's primary proposition that a single visual image constitutes an independently protected Part IV copyright. The definition of "television broadcast" in s 14(10) of the Copyright Act 1956 (UK) did indeed commence with the words "... means visual images broadcast by way of television...". In support of that contention, Ten pointed to the introductory line of s 10(1), namely "In this act, unless the contrary intention appears...".

33 Ten next submitted that the s 10(1) definition of "broadcast" requires transmission "to the public", and that visual images are not in any technical sense transmitted to the public, but only a signal which is sent out by a television broadcaster for part only of a twenty-four hour day in the early times of television, and which is now sent out continuously for 24 hours a day by almost all television stations. Ten then referred to the words used in para 116 of the Gregory Report, namely "... a new right should be given to the broadcasting organisations in their own programme...", and submitted that since "the broadcast made by a television broadcaster is constituted as a matter of ordinary English by various elements such as programs, news items, advertisements, station identifications and other familiar subject matter over the course of a period of time", it follows that the "only two serious competitors in the analysis (ie as to substantiality in relation to television broadcast copyright) are a period of one day or a period of seven days". In support of that radical submission, Ten referred to "... the way they packaged themselves...", and thus to the evidence given by Mr Stephens, Nine's Director of Programs (transcript pp265-266), in relation to the composition of Nine's daily programs, and to Nine's announcement to sections of the media of its ordinary programming on a weekly basis. Ten further pointed to the following words of the s 10(1) definition of "television broadcast", namely "...broadcast by way of television...," and submitted that since the same does not contain an expression such as "broadcast by way of a television program", the definition does not allow for the notion of a television programme for the operation of the s 14(1)(a) or otherwise. I would intrude to point out the equally obvious, namely that the definition does not stipulate "... broadcast by way of a signal", Ten expanded upon this submission as follows (transcript p406):

"... the television signal is generated by a transmitter. When the transmitter is switched on the copyright starts, a broadcast commences. When it's switched off the broadcast ends, in a technical sense, and there's nothing to see on the screen so that visual images are no longer broadcast.

...

... the signal is constant in the sense that something is being sent although the visual constituent of the signal will vary depending on what's being shown. That is continually changing. It changes every time the image or the sounds change, which is all the time."

The primary cases of the parties thus take the respective extremes of a split second (ie a single image), in the case of Nine, and of not less than twenty-four hours, in the case of Ten.

34 Before leaving Ten's submissions concerning television signals and the implications thereof in terms of s 14(1)(a) referrable to television broadcast copyright, I would point out that the Gregory Report did not only use the word "programme" in para 116. I would refer also to "It (ie the B.B.C.) assembles its own programmes and transmits them at considerable cost and skill", to "indifferent reproductions both of sound and television programmes have been made..." contained in para 117 of such Report, and to the words "... to make records of their programmes... for subsequent use in repeat programmes" contained in para 118 of such Report, as to all of which see their full context in [21](i) above. I would also refer to the use of the word "programme" in para 286 of the Spicer Report [21(iii)]. Moreover in the Broadcasting Act 1942 (as amended), the s 4(1) definition of "televise" means "to operate a radiocommunications transmitter to the general public of television programs". Whilst Nine's primary case as to individual visual image copyright does not sit well with the use of the word "programmes" in the passages I have extracted from the Gregory Report, nor does Ten's contention as to twenty-four hour or weekly signals.

35 Upon the basis of the submissions set out in [33] above, Ten's submissions concluded as follows:

"In the present proceedings, the applicants are out on a limb with their characterisation of what is the broadcast. This is because they have not proved the length or composition of any of their daily broadcasts or their weekly broadcasts as a benchmark against which to test the issue of substantiality. Unless the applicants are correct on their primary arguments, the Court cannot assess the question of substantiality, whatever the appropriate criteria may be."

But of course if Nine is correct on its alternative contention in principle as to television broadcast copyright residing in each individual programme or segment of a programme, this submission falls away.

36 As to the definition provisions of s 25(4)(a), upon which Nine placed so much reliance [27], Ten responded that whilst the same makes it clear that photographs can infringe, there would still need to be sufficient photographs to amount to a substantial part of an identified broadcast, and Ten seeks support for that contention from para 295 of the Spicer Report (extracted at [21(iii)] above) to the effect that what s 25(4)(a) was designed to achieve was the exclusion of any suggestion that a series of still images would never infringe television broadcast copyright. Furthermore, s 25(4)(a) was said by Ten to address a different kind of technology and a different kind of right, namely the technology involved in the taking of a physically enduring photograph of part of a momentary television broadcast, and not a momentary re-broadcast of a momentary original broadcast (as to which I have already made reference at the close of [28] above). Hence, so that submission continued, the text of s 25(4)(a) has nothing to say in relation to a re-broadcast within s 87(c), and relates only to the operation of s 87(a). Or put another way, s 87(c) relates only to the production of a signal by way of re-broadcast, which in no sense, technical or otherwise, is "a photograph of any part of a broadcast" (to adopt the description in para 295 of the Spicer Report), or to adopt what became the statutory description in s 87(a), namely "a cinematograph film of the [television] broadcast, or a copy of such a film". Thus, so it was illustrated by Ten, s 25(4)(a) and s 87(a) would apply to prohibit the video taping or photographing of visual images for the purpose of producing posters or advertisements, which was the thrust of the legislative intention.

37 Ten thereafter submitted, in response to Nine's contention summarised in [28(iv)] above, that the reason for the omission from the s 10(1) definitions of "television broadcast" and "sound broadcast" of the further s 10(1) expressions "aggregate of the visual images... [including] the aggregate of sounds embodied in the sound-track associated with such visual images", and "aggregate of the sounds embodied in a record" in the respective s 10(1) definitions of "cinematograph film" and "sound recording", was to reflect the changes in technology, addressed for instance in para 93 of the Gregory Report [21(i)], from the technology which had been originally addressed by the Copyright Act 1911 (UK), and that the use of such expressions involving the word "aggregate" did not carry the significance contended for by Nine, namely to impute to the respective definitions of "television broadcast" and "sound broadcast" the inclusion of references to a single image and a single sound respectively. In this context Ten subsequently submitted in terms which justify reproduction in full:

"Broadcasting is different because broadcasting is momentary. You never have an article which can hold permanently. If you tape a broadcast you produce a cinematograph film and that definition attaches. A broadcast itself may be evanescent, momentary and never recorded. That why there's a structural approach in the Act which differentiates between the aggregate of matters embodied in a more permanent article, when the Act speaks about cinematograph film and sound recordings, and, on the other hand, simply the description of the momentary image of broadcast, together with any sounds, when one turns attention to a television broadcast." (Transcript p 395).

Consequently, so it was further submitted by Ten, it is not possible to disconnect the statutory expression "visual images" by selecting any one of the same and characterising such image as a broadcast.

38 Ten next addressed the issue as to the implications of the s 14(1)(a) notion of "substantial part" in relation to a television broadcast, and in particular the significance of the distinction between Part III and Part IV subjects of copyright, and after citing the following passage from Nationwide News concerning published editions of works set out in [15] above containing the dictum "But since it is the quality of the material taken that is the key issue, the quantity is not the only, nor necessarily the principle criterion", Ten drew attention to the recent decision in the Court of Appeal in England in Marks & Spencer plc and in particular the passages cited from the judgment of Peter Gibson LJ concerning quantity considerations in particular, which are extracted in [18] above.

39 The last component of Ten's submissions upon the issue of substantiality concerned the relevance or otherwise of the object or purpose of an alleged infringer in taking the subject matter of copyright, in relation to which I have already referred to judicial discussions in [15-16] and [23] above. It is appropriate to cite verbatim certain passages from the submissions of Ten appearing on transcript pp 404-5, which were largely directed to Nine's submissions in [31] above:

"... the commercial purpose we point to which sits with our analysis of one week or one day is.... [to] identify a target audience, the kind of show it is and if part of that show, to use a neutral word, is included in [Ten's] broadcast it is legitimate to have regard to those factors, what it's aimed at, what it's designed to do and what the footage that you see is achieving for the general commercial purpose of the station. One doesn't need to say, well, all this is simply television or entertainment.

...if we took a number of parts of the week's episodes and assembled them rather like a Reader's Digest condensed book at the end of the week and said, well, this is what happened in Days of Our Lives over the past five days and we then, say in four minutes, gave a summary of what had happened by reference to little parts of their broadcasts, that would be to substitute the same commercial purpose.

That would be to say, you don't need to spend five hours this week watching Days of Our Lives, we will give the round-up, it's a condensed book. That would be a circumstance in which our object of putting out a potted summary of Days of Our Lives overlapped with the commercial purpose of Nine in putting it over in the usual way... But in our case, of course, the Days of Our Lives episode which has been borrowed is the one where Marlena becomes possessed and... [reacts] to her levitation. Now, the showing of that is not for the same commercial purpose... it's for the purpose of generating some amused interest to highlight the... quintessentially melodramatic nature of the production, to generate amusement because by taking it in a short slab, one doesn't have to watch the week to have a look at it, that is a perfectly legitimate but different commercial purpose. So what we say... that's an example of where the commercial purposes of the two uses of the material are taken into account but we don't, in that example in our submission, offend, overlap or compete in the necessary sense on the level of commercial purposes."

40 Ten's summary of its written submissions was consequently as follows:

(a) a primarily quantitative approach should be taken;

(b) the commercial purpose of the utilisation of the excerpts in the question should be looked at; and

(c) matters of technical significance in the excerpt with respect to the broadcast may also be relevant."

Conclusion on the statutory meaning of "a substantial part" of a television broadcast

41 I would reject the primary submission of Nine that Nine's television broadcast copyright relates to each and every single visual image as a discrete subject matter for the following reasons cumulatively:

(i) The threshold circumstance that the plural, in contrast to the singular, of the statutory concept of "visual image" is alone incorporated throughout the Act, that is to say, in the definition of "television broadcast" (which is preceded by the words "In this Act, unless the contrary intention appears..."), and in the other sections extracted in [5-8] above, namely ss 22(5), 25(4), 87(a) and 101(4).

(ii) The strained and unlikely examples which Nine found itself compelled to put forward to illustrate the statutory notion of substantiality as applied to a television broadcast, namely a single visual image without its accompanying sound, or the "split screen" of a single image (see [28(vi)] above).

(iii) The consistency of use in the contexts cited in [34] above of the words "programme" or "programmes" (or "programs"), which connote a sensible and practical means for measuring the number of "visual images" for the purpose of the operation ss 87(c) and 101(4) of the Act; it would be a question of fact and degree in every case of alleged infringement as to what may constitute a "programme" in a given situation. Incidentally, for what it may ultimately matter, I do not think that it would be sensible to include television advertisements preceding and following the broadcast, for instance by way of illustration, of a television programme consisting of an interview, as part of the preceding or subsequent programme (as the case may be). Television advertisements should be treated as discrete television broadcasts, particularly since "A television or cinema commercial is typically the product of the creative and administrative work of many separate individuals...": Copinger, supra, 14^th ed at para 27.341. I would reject Ten's submission that because advertising is the "life blood" of commercial television broadcasting, it is "...impossible for [Nine] to avoid the conclusion that these advertisements are part of that program." Moreover, where a given programme divides into segments, it may be legitimate in the facts of a given case to use a segment of a programme for measurement of the television broadcast, rather than the whole of the programme.

(iv) For the reasons indicated by Ten set out in [36] above, which I would adopt and therefore need not repeat, and also for the reasons indicated by my concluding observation made in [28] above, the interpretation provisions of s 25(4)(a) have no relevant bearing upon the meaning or operation of s 87(c) of the Act, and are confined in application to the operation of s 87(a). When read together, as Ten submitted, ss 24(4)(a) and 87(a) have a sensible operation in relation to video taping or photographing visual images, for instance for the purpose of producing posters or advertisements. Whilst the definitions of "television broadcast" and "sound broadcast" do not of course contain the words "aggregate of the visual images" and "aggregate of the sounds" respectively appearing in the definitions of "cinematograph film" and "sound recording", I do not think that Nine's contention gains thereby any assistance of significance. There are potentially so many more kinds of programmes or segments of programmes which might be the subject of a television broadcast, other than of course the television broadcast of a cinematograph film, that it is understandable that the draftsman would use the respective expressions "visual images broadcast" and "sounds broadcast". The more difficult proposition seems to be that which Nine is bound to address, namely why the latter statutory expressions did not explicitly spell out reference to "one or more visual images broadcast" (or indeed "one or more sounds broadcast"), if that was the legislative intention? The unreality of copyright protection for every single image (with absence of photographing or filming reproduction) may be seen from the extract from Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs supra at para 7.34 in [20] above, and in particular the sentence "yet in an average feature film a single frame forms less than 0.001 per cent of the total".

(v) The decision in Spelling Goldberg provides no assistance of any analogous kind, because of the material legislative differences explained in [28](iii) above between the UK 1956 Act definition of "cinematograph film" and the Australian Act present definition of the same expression. In any event, Spelling Goldberg provides no conceivable analogy. It cannot be sensibly postulated that an ephemeral or evanescent single image has any discernible value, in the absence of permanent reproduction by way of photocopying or filming as envisaged by s 87(a).

(vi) Circumstances concerning the extent of infrastructure investment involved in television broadcasting (see [28(v)] above) assist to explain why television broadcast copyright became the subject of Part IV protection, but do not provide a reason for the Legislature to confer broadcast copyright in relation to each and every single visual image of a television broadcast.

42 I would also reject the primary submission of Ten that Nine's television broadcast copyright is to be measured by the length of time of transmission of each of Nine's television signals dispatched by its television station, and would thus comprise the aggregate of all visual images broadcast by Nine over a period of not less than one day or alternatively not less than one week, irrespective of the number of programmes thereby involved for the following reasons:

(i) The context in which television broadcast copyright was first afforded legislative recognition was the protection of the broadcaster's "programme" or "programmes"; I have already referred to the occasions of use of those words in the Gregory Report and the Spicer Report in [42(i)(iii)] above and in the definition of "televise" in the Australian Broadcasting Act, each of which implicitly provide such useful indicia, albeit in different contexts. I do not think that it can be reasonably postulated that the expressions "programme" and "programmes" were intended by the British and Australian Legislatures to be measured by reference to the totality of broadcaster's signal, whether involving the aggregate of its daily or weekly broadcasting activity, or otherwise, any more than was each single visual image so intended. The Act seems to me to envisage that the statutory expression "visual images", for the purpose of determining television broadcast copyright, is to be distinguished from the means of broadcasting the same. I refer also the second extract from Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs, supra at para 7.3 appearing in [19] above, where the distinction is drawn between the visual images ("the message") and the means of carrying the same ("the broadcast waves").

(ii) To the extent to which firstly, object or purpose and secondly, quality may be material to the statutory notion of substantiality, there would be impractical difficulty in application across the spectrum of a daily, and much more a weekly, "signal" comprising a multiplicity of programmes, and indeed the very legislative objective of protecting television broadcasters against the "pirating" of their programmes (para 288 of the Spicer Report extracted in [21(iii) above) would be rendered otiose.

(iii) Ten's focus upon the television signal, for purpose of measurement of the "visual images" intended to be protected, would tend to subvert the maintenance of a measure of symmetry between television broadcasts and cinematograph films, particularly given that television broadcasts frequently comprise the visual images and sounds of a cinematograph film which a television station acquires for television re-broadcasting; it is true that copyright protection in relation to published edition of newspapers, the principles of infringement of which have, as I have earlier indicated, analogous ramifications for television broadcast, does not relate to newspaper reports or articles individually, but to the typographical lay-out etc, but of course the technical considerations involved in the presentation of published edition of newspapers on the one hand and television broadcasts on the other hand involve radical differences.

43 Having rejected each of the primary contentions of the parties as to how television broadcast copyright should be ascertained and measured in terms of protection, it follows that the only feasible candidate must be a television broadcaster's programme, or respective segments of a programme, if a programme is susceptible to subdivision by reason of the existence of self contained themes. Moreover in the case of commercial television, an advertisement should logically be treated in the same way as a separate programme, particularly given the difference in theme, the circumstance of discrete production, and the factor that the intellectual property rights involved in any one advertisement would be often complex, with at least some normally being vested in the advertiser (see again [41(iii)] above). In addition to exclusion of advertisements from programmes or segments of programmes for purposes of copyright protection, I would also exclude so-called "station breaks" and "station logos". The same do not bear in any relevant sense "an essential relationship" to the programmes or cognisable segments of programmes, any more than advertisements: cf Ainsworth Nominees Pty Ltd v Andclar Pty Ltd (1988) 12 IPR 551 at 556-7. It therefore becomes necessary to determine the principles governing the ascertainment of "a substantial part" of the television broadcast copyright inherent in a television programme and any segment thereof (as to which see examples propounded by Nine in [29(i)] above). For convenience, I will include hereafter in the expression "programme" any segment thereof, unless otherwise explicitly stated, and as earlier indicated, what may amount to a television programme or alternatively any segment thereof will require an assessment to be made in each case, based upon fair and reasonable judgment in the light of what the law may be taken to sensibly protect as a question of fact and degree. Thus in the case of a television programme containing successive themes or stories, particularly when segregated by advertisements, fairness and reasonableness may stand in the way of an artificial or unrealistic quantification spanning an entire and more lengthy programme presented with a single title.

44 Ten's threefold submissions as to what constitutes a substantial part of the subject matter protected by television broadcast copyright, summarised in [40] above, closely reflect the true construction and operation of the Australian Act, subject only to the requirement, for reasons already given, for measurement of visual images taken by reference to programmes (or perhaps segments of programmes). As earlier mentioned in this judgment, television broadcast copyright is attributable not to originality, as in the case with Part III works, but to technical considerations associated with the infrastructure of production. Nevertheless, technical considerations involve notions of quality, in the way of presentation, as explained in Nationwide News at [15] and in Marks & Spencer [18]. The primary concern of at least the Australian Legislature for protection of television broadcasters appears to have related to piracy (Spicer Report paras 286 and 288 extracted in [21(iii)] above), and I think the same may be said of the UK Legislature, apart from its concern as to poor quality in reproduction inherent in the reproduction of unprotected broadcast copyright (Gregory Report paras 116 and 117); see also Mance LJ paragraph 107 extracted in [18], where reference is made to piracy. In these circumstances, in the absence of authority directly addressing television broadcasting, but with assistance from authority in Australia and the United Kingdom addressing the Part IV analogy of published edition, I am of the opinion that Ten's summary of submissions appearing in [40] above are substantially correct and require only the minor qualification.

45 Ten has apparently borrowed the theme of "a primarily quantitative approach" appearing in [40(a)] above from paragraph (26) of the judgment of Peter Gibson LJ and from paragraph (72) of the judgment of Chadwick LJ, as extracted from Marks & Spencer in [18] above. The judgment of Mance LJ, the remaining member of the court in Marks & Spencer formulated the test in paragraph (105), further extracted in [18] above, by reference to the words "essential" and "material part", which reflect the description of the Federal Court in Nationwide News of the notion of quality, as Mance LJ also said, "But lack of creativity does not mean a lack of all characteristics apart from volume" (paragraph (104) extracted in [18] above). The test was further expressed in Nationwide News [15] to the effect that neither quality or quantity is necessarily the principal test, so much depending on the quality of the presentation and layout of the published edition in each particular case, and how much thereof has been taken by the infringer, and in determining how that test is to be applied, the practical task is to determine whether the taking occurred "... in circumstances in which it can be inferred that harm will be caused to the publisher's commercial interest in the whole of the published edition". Or as put by Mance LJ in paragraph (105) extracted in [18] above in the context of adoption of the Federal Court's approach in that latter respect, "It is not the quality of the information, comment or other contents in any article that matters. Typographical arrangement copyright is concerned with presentation and appearance. What matters is the extent to which the typographical arrangement is reproduced, both in terms of volume and in terms of appearance", and His Lordship appears to draw by way of illustration the contrast between "pirating" on the one hand, and insignificant interference with the copyright owner's commercial interest on the other hand, thereafter pointing out that the defendants/appellants "... did not create anything which could be regarded as resembling... any significant part of the relevant newspapers viewed as an entire publication". Whilst therefore Ten's adoption of the expression "primarily quantitative approach" can be soundly argued in a particular case of broadcast copyright, I do not think that the same wholly encapsulates the test for published edition enunciated in Nationwide News, which in turn must provide the closest of analogies to television broadcasting. Although of course these proceedings relate to television broadcast copyright and not to published edition copyright, I think that the tests explained in Nationwide News in relation to the latter subject matter are capable of reasonably analogous adaption to television broadcast copyright, especially where published edition relates to newspapers. More specifically, the notion of substantiality falls to be determined as a matter of degree by reference to the quality of presentation and screen appearance of the programme which has been taken, as well as the quantity of the programme in terms of viewing time which has been also taken, with sometimes more emphasis to be placed on the former than the latter, or vice versa, depending on the circumstances of the case and in particular, what has been actually copied. Or put another way by Nationwide News in more practical terms, can it be concluded, for instance in the present circumstances of dispute, that harm has been caused to Nine's commercial interest in the whole of its particular programme?

46 As to Ten's second summarised submission extracted in [40(b)] above, I would conclude that in principle, the object or purpose of taking may be material to the resolution of an issue as to whether the substantial part of a television broadcast copyright has been taken, though I think that care must be taken to avoid the application of that test in a mutually exclusive way from the tests concerning quantity and quality identified in [45] above. As indicated in [15] above, in the context of the comparable Part IV copyright of published edition, the judgment in Nationwide News adopted a passage from Copinger (13^th ed), supra at 175 containing the words "... regard must be had to the nature and objects of the selection made...", and Mr Ricketson's work took up that theme, stating "In relation to issues of substantiality, a wider range of purposes may be taken into account" (again in [15] above). Consistent with these views is the passage lastly appearing from paragraph (107) of the judgment of Mance LJ in Marks & Spencer extracted at [18] above, which contains the words "... the appellants' primary purpose". Thus if the primary purpose of an alleged infringing television broadcaster in taking visual images from its competitor for presentation in a programme is for a different use than that to which its competitor has put the same, it may be concluded that though the alleged infringer has thereby gained a commercial advantage, it cannot in any realistic sense be postulated that it has done so as a competitor of the copyright holder, or has in any event occasioned harm to the copyright holder's commercial interest in the whole of its programme, or has been otherwise guilty of piracy. Particularly will that be so where what has been so taken may not reasonably be regarded as taking something reasonably representative of that which the complaining copyright owner had previously broadcast. By way of example, in particular circumstances, the taking of a relatively minuscule segment of a competitor's television broadcast for the object or purpose for instance of satire, comedy, or light entertainment particularly in the wider context of a free and democratic society, may well in particular circumstances fall within "... the Tribunal's sense of fairness" (to cite again Professor Cornish at the conclusion of [13] above), rather than constitute the kind of "pirating" of which for instance the Spicer Report spoke in para 288 (see [21(iii)] above).

Authorities relating to fair dealing for the purpose of criticism or review and for the purpose of reporting news

47 Generally speaking, both parties relied upon statements of principle from the same authorities. As will later emerge, the difficulty in resolving the issues arising concerning fair dealing lies in the application thereof. The texts of ss 103A and 103B have been already extracted in [9-10] above, and their respective provisions pick up reference to a television broadcast by virtue of the s 100A definition of "audio-visual item". An important aspect of s 103A in the context of the subject proceedings is that the criticism or review may be of the audio-visual item infringed, or another audio-visual item or a work, the latter expression referring of course to any of the Part III works. As stated in [9] above, the s 10(1) definition of "sufficient acknowledgment" is confined to "a work", which is in turn confined to a literary, dramatic, musical or artistic work, so that what constitutes a "sufficient acknowledgment" within s 103A falls to be determined in the light of any relevant differences between Part III works and the particular Part IV subject matter being addressed, and otherwise as a question of fact in the circumstances of each case. I am informed by Ten that it is customary to indicate an "acknowledgment" in the circumstances of at least television broadcasting in any event. The fair dealing provisions of ss 103A and 103B of the Act relating to audio-visual items came into force in 1986, in the context of the Explanatory Memorandum later referred to and partly extracted. Prior to that time, there was already in force s 41 of the Act relating to fair dealing with literary, dramatic, musical or artistic work (and an adaption of any of the first three of such works) for the purpose of reporting news, and s 42 relating to fair dealing for the purpose of reporting news. No corresponding or similar provisions have been incorporated into Part IV of the Act, so that the matters to which regard should be had are at large, subject of course to such assistance as can be obtained from the authorities.

48 An appropriate starting point for review of authorities relating to fair dealing is the decision of this court in De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99 (Beaumont J), where consideration was given to the common law origins of the defences of fair dealing, and to the subsequent Australian and United Kingdom authorities upon the respective Australian and UK statutory provisions until the handing down of the judgment in 1990. After referring to the common law origins of the doctrine of fair dealing, Beaumont J at 107, set out the Macquarie Dictionary definitions of "criticism" as follows:

"1. The act or art of analysing and judging the quality of a literary or artistic work, etc: literary criticism. 2. The act of passing judgment as to the merits of something...4. A critical comment, article or essay; a critique."

and of "review" as follows:

"1. A critical article or report, as in a periodical, on some literary work, commonly some work of recent appearance; a critique..."

Such definitions have not changed over the past decade. Then his Honour continued at 107: "It would seem that the word `review' in the sense in which it is to be understood in s 41 is cognate with the word `criticism'. It may be said that one is the process and the other is the result of the critical application of mental faculties...". One of the reasons for his Honour's conclusion that the Neville Jeffress activities could not be characterised as either "criticism" or "review" for the purposes of s 41 was that the same did "... not appear to extend to the passing of a judgment as to the merit of the articles identified".

49 As to the meaning of "fair" in relation to a dealing within s 41 of the Act, his Honour found assistance in the following often cited passage appearing in Hubbard v Vosper [1972] 2 QB 84 at 94 (per Lord Denning MR)

"It is impossible to define what is `fair dealing'. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide..."

Thus, it will be appreciated that factors relevant to the notion of substantiality may overlap with those relating to fair dealing. Further extracts from Lord Denning's judgment in Vosper are cited in [51] below in Time Warner. Beaumont J also cited the following passage from University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 at 12 per Gibbs J, in the context of a dispute in relation to s 49 of the Act, as follows:

"The principles laid down by the Act are broadly stated, by reference to such abstract concepts as `fair dealing'... and it is left to the courts to apply those principles after a detailed consideration of all the circumstances of a particular case."

And further the following passage from Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 at 56 per Mason J as follows:

"I am inclined to allow that `news', despite its context of `the reporting of news' `in a newspaper, magazine or similar periodical', is not restricted to `current events'."

And also in the same context, Beaumont J at 108 cited from the judgment of Romer LJ in Hawkes and Son (London) Ltd v Paramount Film Service Ltd (already referred to in [13] above in the context of discussion of the notion of substantiality) at 609 as follows (inter alia):

"... The paper would also, of course, be entitled to publish a photograph of the boys marching past the Prince of Wales. But what they would not be entitled to do would be to say: `For the benefit of those who were not able to be present, we publish the principal 28 bars of the Colonel Bogey march'. That is just what the defendants have done. They have, for the benefit of those who were not present, photographed the boys marching past the Prince of Wales; and have also provided, for the people who would see it, a representation of the `Colonel Bogey' march."

50 To the judicial dicta cited in De Garis, I would add reference to the dictum of Ungoed-Thomas J in Beloff v Pressdram Ltd [1973] 1 All ER 241 at 262 (also [1973] RPC 765 at 786):

"The relevant fair dealing is thus fair dealing with the memorandum for the approved purposes. It is fair dealing directed to and consequently limited to and to be judged in relation to the approved purposes. It is dealing which is fair for the approved purposes and not dealing which might be fair for some other purpose or fair in general. Mere dealing with the work for that purpose is not enough; it must also be dealing which is fair for that purpose; whose fairness, as I have indicated, must be judged in relation to that purpose."

That passage in Beloff has since been frequently cited since, for instance, in British Broadcasting Corporation v British Sky Broadcasting Ltd (1991) 21 IPR 503 at 514, where Scott J also added reference to what had been much earlier said in Johnstone v Bernard Jones Publications Ltd [1938] 1 Ch 599 at 607 as follows:

"I think there is much force in the contention of counsel for the plaintiff that any oblique motive, as he expressed it, would render the publication of the letter in question an unfair dealing."

51 Subsequent to the decision of this Court in De Garis, there has been, first in point of time, an important decision of the Court of Appeal in the United Kingdom in Time Warner Entertainment Co Ltd v Channel 4 Television Corporation PLC (1993) 28 IPR 459, which related to copyright in a well known cinematograph film. The passage from Vosper extracted in [49] above was approved by Neill LJ (with whose judgment Farquharson LJ agreed), as was the following further passage from Vosper at 94:

"A literary work consists, not only of the literary style, but also of the thoughts underlying it, as expressed in the words. Under the defence of `fair dealing' both can be criticised. Mr Vosper is entitled to criticise not only the literary style, but also the doctrine or philosophy of Mr Hubbard as expounded in the books."

And after referring to a further passage from Beloff at 263 that "fair dealing is a question of fact and impression", Neill LJ added at 467: "One has to consider whether the allegedly infringing material may amount to an illegitimate exploitation of the copyright holders' work". Henry LJ agreed with the other members of the Court of Appeal in Time Warner, and added the following further observations and analysis at 468-9:

"The mischief at which the Act is aimed is to prevent copyright owners of works which they have put in the public domain from picking and choosing as to who may review their works, when they may do so, and what clips they may use....

But even if it is assumed that the infringing excerpts were arguably not fairly representative, would that defeat the fair dealing defence? In my judgment as a matter of law it would not. As Lord Atkin said in a different context: `The path of criticism is a public way: The wrong-headed are permitted to err therein...': Ambard v AG for Trinidad and Tobago [1936] AC 322 at 335. `Fair dealing' in its statutory context refers to the true purpose (ie good faith, the intention and the genuineness) of the critical work - is the program incorporating the infringing material a genuine piece of criticism or review, or is it something else, such as an attempt to dress up the infringement of another's copyright in the guise of criticism, and so profit unfairly from another's work? As Lord Denning said in Hubbard v Vosper... `it is not fair dealing for a rival in the trade to take copyright material and use it for his own benefit'.

If it is the former, in a genuine criticism of the decision or to withdraw that work from the public domain, it seems to me that the defence is not lost if the offending excerpts might arguably be thought to be (in relation to the original film) unbalanced or unrepresentative... If satisfied that the theme and purpose of the criticism was genuinely as summarised above, I would not regard such imbalance as raising an arguable case that the fair dealing defence was not available. Likewise, the other side of the same coin, if the intention was to profit from the breach of copyright... under the pretence of criticism, then no matter how fair or balanced or representative the infringing excerpts might be, the purpose would not be that of criticism and review, and so would not have the protection of the s 30 defence...."

52 Both parties professed reliance upon the subsequent unanimous decision of the UK Court of Appeal in Pro Sieben Media AG v Carlton UK Television Ltd [1999] 1 WLR 605. The circumstances in that case involved the television re-broadcast of an excerpt from a German television programme broadcast by a British television station, in relation to which the trial judge had rejected the defences of the broadcaster based upon the corresponding (though not identical) provisions of the Copyright Act 1988 (UK) to ss 103A and 103B of the Australian Act. The Court of Appeal adopted statements of principle appearing in the judgments in Vosper, Beloff and Time Warner to which I have already made reference, and in explaining that the trial judge had focused too little on the likely impact of the television excerpt which had been copied, and too much on the actual purposes, intentions and motives of the programme producers, the Court of Appeal enunciated the following principles:

(i) "It is a question of degree or of fact and impression...The degree to which the challenged use competes with exploitation of copyright by the copyright owner is a very important consideration, but not the only consideration. The extent of the use is also relevant, but its relevance depends very much on the particular circumstance ... ." (at 613)

(ii) "If the fair dealing is for the purpose of criticism that criticism may be strongly expressed and unbalanced without forfeiting the fair dealing defence; an author's remedy for malicious and unjustified criticism lies (if it lies anywhere) in the law of defamation, not copyright." (at 613)

(iii) "`Criticism or review' ...are expressions of wide and indefinite scope. Any attempt to plot [its] precise boundaries is doomed to failure. They are expressions which should be interpreted liberally...However, it can be said that the nearer that any particular derivative use of copyright material comes to the boundaries, unplotted though they are, the less likely it is to make good the fair dealing defence." (at 614)

(iv) "Criticism of a work need not be limited to criticism of style. It may also extend to the ideas to be found in a work and its social or moral implications." (at 614)

53 The most recent United Kingdom authority to which I was referred in relation to the defence of fair dealing for the purpose of criticism or review was the further decision of the UK Court of Appeal in Hyde Park Residence Ltd v Yelland [2000] 3 WLR 215, which related to a defendant newspaper's publication of two prints of the Princess of Wales and Mr Dodi Fayed outside the plaintiff's Paris villa, and which prints were made by a member of the plaintiff's staff without its consent. The newspaper sought to justify its conduct by reference to the United Kingdom equivalents of ss 203A and 203B on account of an alleged contradiction between what the photographs disclosed and what Mr Fayed's father had been publicly asserting. So far as concerns the issues of fair dealing in the proceedings before me, the Court of Appeal's decision may be treated as unanimous. Aldous LJ, who wrote the leading judgment, re-affirmed the essence of that part of the judgments in Vosper, Beloff and Pro Sieben to which I have referred in [49], [50] and [52] above. In para 38 at 227, Aldous LJ then said as follows:

"Section 30 looks at the use made of the copyright work, not who the owner was or is. Thus the court must judge the fairness by the objective standard of whether a fair minded and honest person would have dealt with the copyright work, in the manner that `The Sun' did, for the purpose of reporting the relevant current events, in this case the published untruthful statements of Mr Al Fayed.

...

To describe what the Sun did is to give honour to dishonour. Further the extent of the use was excessive."

Sufficient acknowledgment

54 I come then to the requirement of "sufficient acknowledgment" for the purpose of Ten's s 103A defence. As earlier indicated in [9] above, the definition of that expression in the Australian Act applies only to Part III works, so that "sufficient acknowledgment" in relation to a Part IV subject matter is at large, subject to the observations I have already made in [47] above, and must be a question of fact in each case in relation to whatever "subject matter" is the subject of consideration. The following extract from Pro Sieben at 618 provides a measure of guidance for the purposes of assessing what may constitute a "sufficient acknowledgment" within s 103A in relation to a Part IV work such as a television broadcast:

"Mr Silverleaf accepted that identification of an author would normally and naturally be achieved by communicating, by spoken works or writing or both, his correct name or, if the author wrote under a pseudonym, the name by which he was known as an author. But Mr Silverleaf submitted that the television transmission of a logo could also constitute identification for the purposes of section 178, especially if the logo was the means by which the author of a television programme was accustomed to identify itself, and if the use of the correct name was unlikely to have any particular significance to the bulk of the audience. In this case there was evidence, from Mr Michael von Dessauer, a vice president of Pro Sieben, that his company used the logo (of a stylised "7") as an identification. The fact the company's correct name and postal address was used on business communications is unsurprising and does not detract from that evidence. There was also evidence that the normal audience for Pro Sieben programmes in England is, for obvious reasons, very small and not representative of the general body of Carlton viewers. I would accept Mr Silverleaf's submissions and hold that the defendants succeed in making good a defence under section 30(1)."

Ten's submissions upon fair dealing defences

55 Since Ten carried the onus of establishing these defences upon the hypothesis that Ten had infringed Nine's television broadcast copyright, it is appropriate that I first summarise Ten's submissions. Ten referred me to the Explanatory Memorandum to the Copyright Amendment Bill 1986 which introduced ss 103A and 103B to the House of Representatives of the Australian Parliament, and in particular, the following paragraphs 25, 26 and 27:

"25. As is the case in sections 41 and 42 of the Act, upon which the two new sections are modelled, what amounts to a fair dealing is a matter to be determined on the facts of each case. The dealing must, however, be genuinely for the purpose permitted in the sections, and not for some other "hidden" purpose. Sections 103A and 103B are intended to operate (as do sections 41 and 42 of the Act) as complete defences to actions for infringement. A number of factors may be considered in determining whether the defence is made out, such as the nature of the material, the amount and substantiality of the part of the material used, and the effect of the dealing on the commercial value to the copyright owner of the material.

(I interpolate to mention that the reference above to "hidden purpose" picks up the corresponding description "oblique purpose" used in Johnstone (see [50] above, and that once again, the overlapping of concepts of fair dealing with those of substantiality may be recognised).

26. Section 103A will permit fair dealing with an audio-visual item for the purpose of genuine criticism or review, whether of that or another audio-visual item or of a work. A "sufficient acknowledgment" of the item must be made. Existing section 41, and the proposed section 103A, have their basis in common law, which provided that a dealing would not be defensible as criticism or review if one person's material were used by another only to his or her own benefit. The purpose of this fair dealing defence is to allow use of parts of materials to carry out the criticism or review which is ordinarily expected or sought by the copyright owner, and which provides information and comment for possible consumers and audiences.

27. Section 103B will permit fair dealing with an audio-visual item for the purpose of, or associated with, the reporting of news. If the dealing occurs in a newspaper or the like a "sufficient acknowledgment" must be made."

In relation to the last sentence of the above para 26 of the Explanatory Memorandum, Ten submits "Where a broadcaster enters the arena, it expects and sometimes invites criticism. It hopes for criticism where what has been produced is good and it risks criticism where its efforts have been poor". Ten added in oral submission at transcript p435: "[Television Broadcasters have] got a strong and powerful asset and the public is entitled to have that scrutinised by criticism and review..." Such submission as to criticism needs to be qualified by reference to the adjective "genuine", in the contexts where used in the above extracts from the Explanatory Memorandum, and in the passage from the judgment of Henry LJ in Time Warner extracted in [51] above.

56 Ten accepted the proposition that if it had used the Panel Segments as a "potted" substitute for entertainment, so that a television viewer could obtain ready and easy access to the same in a shorter time, such kind of activity on its part would constitute an unfair dealing. Ten exemplified such proposition as follows (transcript p418):

"If I put up as a television station, if I broadcast snippets of another television station series so that I could round up in say 10 minutes what's taken them 5 hours to broadcast at the end of the week, the best of Days of Our Lives, the most interesting moments, that would be an unfair dealing because we would [be saying], don't bother spending a week watching it on there, look at it on Friday night on Channel Ten and we'll tell you everything that has happened during the week and if you missed it, catch up."

A further example may be illustrated from the passage cited from Hawkes in [49] above. Ten denied that it had so used any of the Panel Segments, and I think that its denial is justified. But it does not follow that Ten has qualified for fair dealing protection in relation to each of the television broadcasts in issue.

57 Ten next submitted that the purpose for which it had utilised Nine's footage by its Panel Segments had been by way of review and discussion of current issues, and in particular as such issues arose or emerged in the context of Nine's recent television programs. Ten added as follows (transcript p419):

"We submit your Honour will not reach the conclusion that this is simply an uncomplicated show, that there is a serious element in this show of commenting on how television is going and the way people are doing television, so that it's a commentary, at least to some degree, not taking entertaining footage for its own sake...the broadcast material which is being shown becomes in most of these examples a platform for comment and that comment... fits squarely within the limits of criticism [or] review in all of the cases."

I would agree with the generality of the foregoing descriptions, notwithstanding that Ten has publicly referred to its programs in terms of light entertainment and comedy themes, as appears from some of Ten's promotional material cited in [2] above.

58 Specifically in the context of its reliance upon s 103B, Ten drew attention to the conceptual difficulty of distinguishing between news and entertainment, and referred to the following dictum of Hill J of this court in Nine Network Australia Pty Ltd v Australian Broadcasting Corporation [1999] FCA 1864 at [36-7] as follows:

"[36] For my part I find the distinction between news and entertainment a very difficult one. It is not one I think which can be resolved by looking at the dictionary definition of the word. In some ways it may well be as difficult as the issue that has dominated the news press over the last few months of some suggestion of difference between commentary and info-tainment or entertainment...

[37] In my view the fact that humour is used does not necessarily negate the fact that what is being broadcast may be news. Hopefully the fact that news coverage is interesting or even to some entertaining likewise does not negate the fact that it could be news. As I have already said the celebrations of the City of Sydney this New Year's Eve are of both national and international significance. The reporting and showing of a part of them on TV by Channel Two as national broadcaster could well fall within s 42".

Section 42 is of course the Part III counterpart to s 103B.

59 Ten next drew attention to the inclusion within s 103A of the words "... whether of the first-mentioned audio-visual item, another audio-visual item or a work...," and submitted that "... providing that the segment is acknowledged, it may be... incidentally utilised by [Ten] in the course of criticism or review of another piece of television, or for criticism and review of a music work or other item for which the television footage is used". That submission as to the construction of s 103A, which picks up the part thereof reading "whether of the abovementioned audio-visual item, another audio-visual item or a work", is correct and not controverted by Nine.

60 A further submission of Ten was founded upon that part of the judgment of the UK Court of Appeal in Pro Sieben as has been extracted in [52(i)] above, and such submission was to the following effect:

But no matter how robust, no matter how excessive, once you're into genuine bona fide criticism it's protected. Otherwise one would have a provision that only allowed totally balanced and conservative criticism or review... it's the dealing that has got to be fair... the fair dealing is the use that's made by the putative infringer. But once you're into fair dealing, properly so-called, even excesses of taste or point of view are accommodated and that's the other main point we want to make about the section, and so it ought to be in a free society..." (transcript p423).

This is a significant submission, particularly because individual tastes obviously vary, and would do so in relation to at least some of the Panel Segments. However the submission tends to circularity in practice, and the critical task remains for Ten to demonstrate that its conduct was relevantly "into genuine bona fide criticism" and "... into fair dealing, properly so-called", as the submission contends. Ten further contended for the proposition that if a portion of a television broadcast is shown in order to provide a platform for discussion about the quality of that broadcast, or of some other work or subject matter addressed in the course of that broadcast, then the court ought to conclude that the dealing is fair. In that context, Ten further emphasised that unlike defamation, which is designed to protect reputation and standing, infringement of copyright has no kind of tortious operation; as was put by Ten in address at transcript p435: "... you enter the arena as a broadcaster and you expect within the limits of fair dealing, criticism will arise, part of the game. You've got a strong and powerful asset and the public is entitled to have that scrutinised by criticism and review...". The defences afforded by ss 103A and 103B, so Ten again emphasised, are not devalued in circumstances where the boundaries of taste or balance are exceeded. So much derives support from the passage extracted from Pro Sieben in [52(ii)] above.

61 Having made the foregoing general submissions, Ten advanced detailed submissions in relation to each of the twenty excerpts the subject of the proceedings, which I will shortly review. Nine has of course done likewise by way of response.

Nine's submissions on fair dealing defences

62 Nine's written submissions emphasised the need for a true purpose of genuine criticism or review, that is to say criticism or review undertaken in good faith and with genuine intention, and Nine pointed to the statements of principle made by the UK Court of Appeal in Time Warner (see [51] above), and para 26 of the Explanatory Memorandum to the Copyright Bill 1986 (see [55] above). So much may readily be accepted in principle. Nine further emphasised that purpose is to be judged objectively, and referred generally in that regard to Pro Sieben. In agreeing with this last submission, I would repeat my earlier reference to the criticism made by the UK Court of Appeal in that case of the undue focus of the Trial Judge upon the actual purposes intentions and motives of the defendant programme producers [52], rather than what may be objectively concluded. Nine next emphasised that notwithstanding the need for the alleged infringer to establish either one of the objective statutory purposes of criticism or review and of reporting news, evidence of the holding of a subjective purpose, which is different to one of the statutory purposes, is relevant to contradict the advocated existence of any such purposes objectively falling for assessment, and Nine cited many authorities made in a variety of contexts in support of that long established principle of the general law of evidence. Such proposition must undoubtedly be correct. However Nine added the somewhat circular submission that "the use of footage to illustrate a discussion is the antithesis of a discussion to criticise footage". It is difficult to understand how ephemeral or evanescent visual images can be realistically criticised unless footage can be so used.

63 Nine then submitted that not only is parody unavailable as a defence to infringement of copyright, but further that "The fair dealing defences are relevantly available only for the purposes of criticism or review or the reporting of news", the implication being that criticism or review will be disqualified if made in a parodying manner. Nine referred me in the context of that submission to Compagnie Generale Des Establissements Michelin-Michelin & Cie v National Automobile Aerospace Transportation and General Workers Union of Canada (Federal Court of Canada, unreported, 19 December 1996 - Teitelbaum J) where the following appears at page 19 thereof:

"Under the Copyright Act, `criticism is not synonymous with parody. Criticism requires analysis and judgment of a work that sheds light on the original. Parody is defined in the Collins dictionary (2<sup>nd</sup> ed) as `a musical, literary or other composition that mimics the style of another composer, author etc in a humorous and satirical way"... In the Canadian and Commonwealth courts, parody has never been held to figure as criticism although the term criticism is not confined to `literary criticism'... . The Defendants fall short because American case law permitting parody as criticism under the American doctrine of `fair use' is not applicable nor terribly persuasive in the Canadian context of a different legal regime and a longstanding trend to deny parody as an exception. (p16-17)

It is not enough that because it is a parody, there is no need to mention the source. Now the Defendants would have the Court rule that by the mere fact of the parody label, the Defendants are permitted to forego treating the Plaintiff's copyright in a fair manner, a requirements for all the existing exceptions like criticism, review and summary. To accept the Defendants' submissions on parody would be akin to making the parody label the last refuge of the scoundrel since the Court would have to do away with two of the usual structures of Section 27(2)(a.1): mentioning the source and fair treatment. The term "fair dealing" is not defined in the Copyright Act but I accept the Plaintiff's submission that the overall use of the copyright must be "fair" or treat the copyright in a good faith manner. The Collins Dictionary defines "fair" as "free from discrimination, dishonesty, etc. just; impartial". The two secondary elements of mentioning the source and fair treatment are linked since the requirement that the critic mention the source and author's name is in some ways a testament to fair treatment. Whether the treatment of the original is in good faith is a question of degree and impression looking to the quality and quantity of the original work used: see Hubbard v Vosper [1972] 1 Q.B. 84 (C.A.). Once again, as was the case in determining whether there has been reproduction of a substantial part, it is question of impression."

However one important word in the above passage is "mimics", which is akin to imitate, and I would refer again to the distinction between parody (and burlesque) on the one hand, and satire on the other, parody and burlesque involving imitation and thus copying (see again [16-17] above). An obvious characteristic of Ten's use of Nine's footage has been clearly to fully identify the same mainly for purposes of satire, light entertainment etc, and not for the purpose of copying by way of imitation, and thus dissembling copyright material as its own.

64 Nine has rightly emphasised, in the context of fair dealing, the relevance of the circumstance that Nine and Ten are engaged in competition with each other as substantial commercial television broadcasters in Australia: see again Pro Sieben at [52(i)] above, in relation to which passage the following observation was subsequently made by Peter Gibson LJ in Marks & Spencer in para [44] thereof:

"The commercial motives and intentions of Marks and Spencer cannot be impugned. The degree to which the challenged use competes with exploitation of copyright by the copyright owner was recognised to be a very important consideration in Pro Sieben." (referring thereby to what I have encapsulated above at [52(i)].

Nine has rightly submitted that "In the present case all of the footage is re-broadcast by a direct competitor of the Applicants and one trying to secure as great a viewing audience as possible". Nine cited Vosper, supra at 93, where Lord Denning said "... it is not fair dealing for a rival in the trade to take copyright material and use it for his own benefit", but Lord Denning's observation has been taken by Nine out of the context in which he used the description "use it for his own benefit", where what was involved were not ephemeral or evanescent visual images the subject of taking. The more pertinent approach, in the case of television broadcast, is to be found in the television circumstances in Time Warner.

65 Generally as to fair dealing, Nine submits that what fulfils the concept of fair dealing is a question of fact and impression. Nine adopted the reference to "hidden purpose" in paragraph 25 of the Explanatory Memorandum extracted in [55] above. Nine also contended, in the case of reporting news, that the motives of Ten are relevant, and adopted the following passage from the judgment of Aldous LJ in Hyde Park Residence, supra at 227 as follows:

"[37] Thus the cases establish...that it is appropriate to take into account the motives of the alleged infringer, the extend and purpose of use, and whether that extent was necessary for the purpose of reporting the current events in question ."

A theme pervading Nine's submissions is that what Ten has claimed to be news has ceased to be so, but the same do not appear to take account of what was said in John Fairfax as to news not being restricted to current events (see [49] above).

Conclusion upon fair dealing principles emerging from authorities

66 It is now appropriate to condense below the principles emerging from the authorities involving the fair dealing defences:

(i) Fair dealing involves questions of degree and impression; it is to be judged by the criterion of a fair minded and honest person, and is an abstract concept.

(ii) Fairness is to be judged objectively in relation to the relevant purpose, that is to say, the purpose of criticism or review or the purpose of reporting news; in short, it must be fair and genuine for the relevant purpose, because fair dealing truth of purpose;

(iii) Criticism and review are words of wide and indefinite scope which should be interpreted liberally; nevertheless criticism and review involve the passing of judgment criticism and review may be strongly expressed;

(iv) Criticism and review must be genuine and not a pretence for some other form of purpose, but if genuine, need not necessarily be balanced;

(v) An oblique or hidden motive may disqualify reliance upon criticism and review, particularly where the copyright infringer is a trade rival who uses the copyright subject matter for its own benefit, particularly in a dissembling way; "the path of criticism is a public way"'

(vi) Criticism and review extends to thoughts underlying the expression of the copyright works or subject matter;

(vii) "News" is not restricted to current events; and

(viii) "News" may involve the use of humour though the distinction between news and entertainment may be difficult to determine in particular situations.

Conclusions on substantiality issues applicable to the subject programmes

67 In [41-46] above, I discussed the principles of law applicable to the operation of the substantiality provisions of s 14(1)(a) of the Act in relation to television broadcast copyright, which I will now summarise before examining the circumstances of each programme or programme segment:

(i) Copyright inheres in relation to a broadcaster's programme, or where applicable, a segment of a programme, the same constituting television broadcasts within ss 87 and 91 of the Act; I use the word "segment" of a programme in the sense of that part of a programme conducted under a common title which can be said to involve a separate, detached and distinct theme or story or report;

(ii) It will be a question of fact in each case as to what constitutes a broadcaster's programme or programme segment or put more technically, what message carried by the broadcast waves in the form of visual images constitutes a programme or programme segment as indicated in (i) above, individuality must be the key;

(iii) Ascertainment of what constitutes a substantial part of a programme or a segment of a programme will require consideration of both the quantity and quality of what has been taken from a television broadcaster's commercial interest in relation to its programme or programme segment, with the ultimate emphasis to be placed, whether on quantity or quality, depending on the particular circumstances of the particular case; a primarily quantitative approach will usually be the most practical starting point of any enquiry;

(iv) Quality is concerned with the considerations associated with infrastructure of production, and in consequence with the technicalities of presentation and appearance of the visual images rather than what may be involved in terms of programme theme, story, information or other programme content;

(v) One simple and practical test is to ask the question whether there has in truth taken place a "pirating" by the alleged infringer from the programme or programme segment, that is to say, a significant interference with the television broadcaster's commercial interest in terms of the nature, value and degree of what has been taken; in short, has harm been inflicted on the television broadcaster's commercial interest in the whole of the programme or programme segment. Thus prejudice to and diminution in profits, directly or indirectly, will be material;

(vi) Apart from quantity and quality considerations per se, a further guide as to whether a substantial part of the programme or segment of the programme has been taken may be the object or purpose of the re-broadcaster in so taking; an object or purpose of satire, comedy or light entertainment, will not normally involve infringement because it will not involve imitation and thus copying, whereas the same cannot be said in relation to the contrasting notions of parody and burlesque, the essence of which is imitation and thus copying; and

(vii) A useful guide will be to exercise a sense of fairness and degree having regard to all the circumstances of the case.

68 As indicated in [67(iii)] above, the appropriate starting point is to determine the quantity of the visual images taken compared with the total quantity of the visual images of the programme or any programme segment, since the determination of quantity would normally be the simpler task, and if a larger quantity has been taken, considerations of quality would tend to become unnecessary to investigate; in that regard, s 14(1)(a) of the Act uses the critical words "a substantial part". Measurement of quantities of visual images may be more conveniently undertaken by measurement of the broadcasting times respectively involved in the broadcast of a programme or programme segment. As to segments of programmes, Nine has sought to establish the same in every case, notwithstanding the limited examples referred to in [29(i)] above. Indeed in the case of each programme, Nine has propounded alternative segments related to the same excerpt or footage taken. I set out below the following statistical information which I have selected from that provided by Nine in the programme sequence adopted in [3] above. In selecting duration times for segments, I have selected that segment which as a matter of fact or degree is the best candidate for qualification as a segment, but whether or not even the segment so distilled is truly a segment in the sense of possessing a discrete or separate theme or story or report is another matter upon which there is room for debate.

Nine Programme Title	Duration of Nine Programme	Duration of Nine Segment (if applicable)	Duration of Ten Re-Broadcast (ie Panel Segments)
"The Today Show" (Boris Yeltsin)	90 mins & 2 secs	1 min & 24 secs	13 secs
"Midday" (Prime Minister Singing	67 mins & 34 secs	15 mins & 5 secs	17 secs
"Wide World of Sports" (Grand Final Celebrations)	4 hrs 57 mins & 30 secs	8 mins & 16 secs	8 secs
"A Current Affair" (Masquerade of Introduction Agency)	22 mins & 51 secs	6 mins & 39 secs	9 secs
"Australia's Most Wanted" (Aria Award)	43 mins & 2 secs	8 mins & 55 secs	20 secs
"Pick Your Face" (Kerri-Anne Kennerley)	22 mins & 32 secs	5 mins & 25 secs	20 secs
"Crocodile Hunter" (Scuba Diving)	42 mins & 50 secs	7 mins & 23 secs	28 secs
"Days of Our Lives" (Marlena Standing)	40 mins & 5 secs	3 mins & 42 secs	21 secs
"Days of Our Lives" (Marlena Levitating)	38 mins & 9 secs	6 mins & 52 secs	25 secs
"Simply The Best" (Ray Martin)	49 mins & 48 secs	3 mins & 10 secs	17 secs
"The Inaugural Allan Border Medal Dinner" (Prime Minister Embarrassed)	2 hrs 11 mins & 44 secs	42 mins & 17 secs (or at best 5 mins & 50 secs)	10 secs
"Sunday" (Drugs at Olympics)	1 hr 32 mins & 1 sec (alternatively 42 mins & 17 secs	5 mins & 50 secs	36 secs
"The 72nd Academy Awards" (Artificial Fog)	3 hrs 26 mins & 32 secs	11 mins & 39 secs	25 secs
"Sale Of The New Century" (Lighting Switched Off)	21 mins & 47 secs	8 mins & 11 secs	16 secs
"The Today Show" (Prasad Interview)	1 hr 29 mins & 56 secs	5 mins & 9 secs	42 secs
"The Today Show" (Opera House)	1 hr 29 mins & 59 secs	4 mins & 50 secs	27 secs
"Nightline" (Gosper Interview)	25 mins & 50 secs	3 mins	10 secs
"Newsbreak" (Technical Glitch)	40 secs	22 secs	13 secs
"Who Wants To Be A Millionaire" (Ingredients Of Xmas Pudding)	43 mins & 21 secs	10 mins & 18 secs	20 secs
"The Today Show" (Child Yawning)	1 hr 30 mins & 30 secs	4 mins & 33 secs	9 secs

I confirm that none of the above information includes advertisements, "station breaks" and "station logos". In the case of Wide World of Sports, the same television broadcast was carried by a number of different broadcasters concurrently around Australia, multiplying the ´duration time above recorded by the number of such concurrent broadcasters. In the case of Crocodile Hunter, Ten has submitted that the version of the one hour television broadcast which is in evidence (Ex A15) does not include advertisements, promotions etc, and thus is not a "television broadcast in respect of which Nine can claim copyright". I have no reason to doubt however that there exists an authentic "television broadcast" and that Nine has not misled the Court by using Ex A15 to serve as a form of secondary evidence, and I have proceeded on that basis in [72(vi)] below.

69 The details of the proportionality of time periods of re-broadcasting by Ten to the respective totalities of time periods of broadcasting of programmes (as distinct from programme segments) by Nine demonstrates, in the case of each of the twenty programmes, that if quantity alone is to be the sole factor for measurement, Nine would fail to establish infringement within s 101(4) of the Act, notwithstanding that s 14(1)(a) uses the words "a substantial part" and not "the substantial part". Where programmes can arguably be divided into segments, that is to say, where a segment of a programme can be reasonably characterised as the appropriate measurement in particular circumstances of individuality as a judgment of fact, the case for Nine in relation to quantity alone becomes more debateable. The only case for Nine to claim protection by reference to quantity alone is that of "Newsbreak" (Technical Glitch) where the fraction approximates one-third of the programme, and if segment can be established, more than one half.

70 However I would not venture a conclusion upon the basis of quantity in isolation, despite its obvious high level of importance to the issue of substantiality in relation to television broadcasting [45]. There must be added to each assessment the factor of quality in the relevant sense of technical presentation, arrangement and appearance, and the further factor of Ten's object or purpose of copying (see [46] above). These critical factors of quantity, quality, and object or purpose, do not operate in a mutually exclusive way as I think Nationwide News indicates by analogy to published edition. In relation to the dual tests of quantity and quality, issues must be resolved as to whether harm has been inflicted on Nine's commercial interest in the whole of the programme or programme segment and whether Nine's commercial interest has been interfered with in terms of the nature, value and degree of what has been taken. In short, has "pirating" occurred? I have not identified any instance where in terms of appearance or presentation, it can reasonably be postulated that harm has been occasioned to Nine's commercial interest in terms of the nature, value and degree of what was taken in each instance. On the contrary what was taken could be characterised as relatively de minimi's, and for at least the most part trivial, and was used by Ten for different objects or purposes than those targeted by Nine, being in Ten's case purposes essentially of satire, light humour or light entertainment, and one exceptional instance ("Sunday" (Drugs at Olympics)), for the purpose of serious "live" discussion between members of The Panel on a matter of obvious public interest. Therefore in relation to the notion object or purpose as a consideration material to substantiality, it is readily apparent that Ten's object or purpose in taking by way of re-broadcasting has not been to create anything resembling the Nine programmes from which Ten has taken footage or excerpts. Taking all three relevant factors into account, I would conclude, in relation to each of the programmes, and also the segments of programmes referred to in [69] above assuming the same to be viable in concept, that it cannot be reasonably postulated that any use by Ten of the footage or excerpts taken occasional harm to the scope of Nine's legitimate entitlement to television broadcast copyright protection. Put another way, there has been no "pirating" or unfairness in the sense that such expressions have been used by the courts in relation to the analogous subject matter of published edition, and are to be correspondingly understood in relation to television broadcasting. I would conclude from the evidence that Ten's object or purpose in re-broadcasting has been to use disconnected parts of the relevant Ten footage, along with disconnected parts of the footage of other competing television stations and cable television providers (see again [2] above), for essentially different purposes or objects than those of Nine in creating the relevant programmes or programme segments in the first place. I therefore find that there has been no infringement by Ten of Nine's television broadcasting copyright in relation to any of the subject twenty excerpts or Panel Segments, and that it is unnecessary to examine each one individually for the purpose of providing individual reasons, since the reasons of which I have spoken generally apply to all of the Nine programmes, subject to the special reasoning in relation to "Sunday".

Conclusions on fair dealing defence issues in relation to the subject programmes

71 It is appropriate to first set out in summary form details of those Nine television programmes in relation to which Ten has pressed fair dealing defences; though both defences were originally pleaded, the blank spaces below signify where defences were not pressed.

Nine Programme Title	Fair Dealing Defences for purposes of Criticism and Review	Fair Dealing Defence for purposes of Reporting News	Sufficient Acknowledgment
"The Today Show" (Boris Yeltsin)		Defence raised	No issue pressed by Nine
"Midday" (Prime Minister Singing)	Defence raised	Defence raised	Defence raised
"Wide World of Sports" (Grand Final Celebrations)	Defence raised	Defence raised	No issue pressed by Nine
"A Current Affair" (Masquerade Of Introduction Agency)	Defence raised		Defence raised
"Australia's Most Wanted" (Aria Award)	Defence raised		Defence raised
"Pick Your Face" (Kerri-Anne Kennerley)	Defence raised		Defence raised
"Crocodile Hunter" (Scuba Diving)	Defence raised		Defence raised
"Days Of Our Lives" (Marlena Standing)	Defence raised		No issue pressed by Nine
Days Of Our Lives" (Marlena Levitating)	Defence raised		No issue pressed by Nine
"Simply The Best" (Ray Martin)	Defence raised		No issue pressed by Nine
"The Inaugural Allan Border Medal Dinner" (Prime Minister Embarrassed)		Defence raised	Defence raised
"Sunday" (Drugs at Olympics)		Defence raised	No issue pressed by Nine
"The 72nd Academy Awards" (Artificial Fog)	Defence raised		Defence raised
"Sale Of The New Century" (Lighting Switched Off)	Defence raised		Defence raised
"The Today Show" (Prasad Interview)	Defence raised		Defence raised
"The Today Show" (Opera House)	Defence raised	Defence raised	Defence raised
"Nightline" (Gosper Interview)
"Newsbreak" (Technical Glitch)	Defence raised		Defence raised
"Who Wants To Be A Millionaire" (Ingredients of Xmas Pudding)	Defence raised		Defence raised
"The Today Show" (Child Yawning)	Defence raised		Defence raised

72 I will record, separately in relation to each Nine programme or programme segment in the sequence appearing in [71] above, the respective submissions of Ten and Nine, and my conclusions in relation thereto. In so doing, I am conscious of the circumstance that individual tastes and appraisals can readily intrude upon the views that may be adopted in relation to what is fair dealing in particular contexts, as well as what may reasonably be characterised as a purpose of criticism or review of a particular audio-visual item in the form, as here of course, of a television broadcast, or any other audio-visual item or a "work" included in the first-mentioned television broadcast (s 103A). I am also conscious of the further circumstances, first, that Ten and Nine are rivals or competitors for contemporary television audiences, and that The Panel programmes the subject of challenge have been broadcast concurrently with unrelated television broadcasts being then undertaken by Nine, and further that the burden of establishing ss 103A and 103B(1)(b) defences lies upon Ten. I am further conscious of the circumstance that as has been earlier emphasised, the object or purpose of a re-broadcast is material to establishing whether "a substantial part" of a re-broadcast has occurred, and that an object or purpose of satire light entertainment may also intrude conceptually into a consideration of issues concerning purposes of criticism or review, and perhaps also of issues concerning purposes of reporting of news.

(i) "The Today Show" (Boris Yeltsin)

Ten submits that its re-broadcast here of footage concerning certain activities of Boris Yeltsin constituted fair dealing for the purpose of reporting news within s 103B(1)(b), being news relating to the conduct of President Boris Yeltsin in dismissing the Russian Cabinet on several occasions. What supposedly introduced this topic was the pending Australian Referendum on the Republic. Two issues of principle are involved, first that news is not necessarily to be restricted to current events, a principle which Nine's submissions have tended to disregard (see John Fairfax cited in [49] above), and secondly that the relevant news being re-broadcast need not wholly inhere in the audio-visual item being re-broadcast for the purposes of s 103B(1)(b). The re-broadcast here contains the following comments of members of The Panel which might arguably be thought, individually or cumulatively, to constitute "news" within s 103B(1)(b):

"President Yeltsin dismissed the Russian cabinet every eighteen months;

Prime Minister Putin is an "ex KGB spy".

President Reagan (implicitly) was so old he could not "take himself to the toilet", and was "too old to be running the country".

President Yeltsin's disadvantage in holding office was not "an age limit" but a "blood alcohol limit".

President Clinton "is all there but he's also all there and that has led to problems where Ronald (Reagan) wasn't about to do anything with an intern".

As I have earlier pointed out in [66(vii)] above, news may involve the use of humour, but that there can nevertheless be considerable difficulty in distinguishing news from entertainment (see [58] above). As a matter of judgment and impression, I prefer the conclusion that the purpose of this re-broadcast, evident from The Panel discussion, was that of entertainment rather than the reporting of news, or was so re-broadcast in association with the reporting of news. I would therefore have rejected Ten s 103B(1)(b) defence, had Ten not succeeded in the first place on the issue of infringement. No issue arises as to sufficient acknowledgment.

(ii) "Midday"

Ten contends that its re-broadcast constituted fair dealing for the purpose of criticism or review of the "Midday" programme, and of the role of the presenter Ms Kennerley in that programme, and Ten relied on the principle in Vosper, supra at 94, to the effect that criticism or review may extend to ideas underlining the subject matter of copyright (see the later elaboration on that principle in Pro Sieben at [52(v)] above). I extract below the following on-screen remarks of various members of "The Panel", in order to illustrate the major thrust of The Panel's comments of relevance:

"... did anyone see when Kerri-Anne got the Prime Minister John Howard to sing Happy Birthday to Don Bradman?"

"That will get him back in."

"Its not right to mock someone's stature but he really looks like he should have a hand up his a... moving his mouth when he sits on that little stool..."

...

"Well I reckon if he didn't sing it, she would have put her hand up his a..."

"Kerri-Anne will not take no for an answer."

"She is essentially a Labour voter cause she got Costello to do the macarena ...and made him look like an idiot and now she's done it with John Howard."

"It is interesting with Midday because it was funny at the Logies this year (be)cause she was hot favourite for the Gold Logie. And I remember a conversation. I'll never forget this. A Nine executive coming up to me and saying `Hey does Kerri-Anne win?' And I said "Oh no, she doesn't actually". He goes "Thank God". And I was like `Why's that?' And he goes `Mate, she would be unbearable'..."

"Leave Kerri-Anne alone. She does a good job I reckon."

"She resurrected it."

"You think about that though, what is it five hours."

"Five days a week."

"She is an ideal Midday host. It is interesting when Derryn Hinch was hosting it, the rating(s) aren't much better with Kerri-Anne, yet Derryn was looked upon as a Midday failure."

"A total failure."

"Whereas Kerri-Anne like on Monday, she was beaten by Judge Judy in Adelaide and Perth."

...

I have encountered difficulty in deciding whether the purpose of Ten in re-broadcasting the subject material was that of criticism and review, despite the somewhat disparaging remarks made concerning Ms Kennerley and the "Midday" programme which she had been hosting for some time. Ten has submitted that the purpose of the criticism or review related to both the programme and Ms Kennerley's role in it, but I think that the submission is not sufficiently supported by what I have extracted above. I would conclude that the purpose of Nine's dealing with the subject footage of "Midday" was to satirise aspects of Ms Kennerley's performance as presenter of "Midday", and certain supposed personality traits and political allegiances. I do not think that on balance, and as an issue of fact and degree, it can rightly be postulated that The Panel here engaged in criticism or review of "Midday", and that such was its purpose. If it had become necessary to determine Ten's reliance upon s 103A in relation to what would have otherwise constituted breach of copyright constituted by this re-broadcast, I would have rejected such basis of defence. I would also have rejected Ten's entitlement to have relied upon s 103B(1)(b), upon the purported basis that the Prime Minister's singing of "happy birthday" to Sir Donald Bradman was "newsworthy". It is unrealistic and inapposite to characterise Ten's re-broadcast of such event as having the purpose of or being associated with "the reporting of news". Such event involving the Prime Minister singing had been of course wholly broadcast by Nine in the full context of the earlier "Midday" presentation, and there is no suggestion from Ten to the effect that the same had been treated as newsworthy in whole or in part. Ten's purpose in re-broadcasting the event was rather to satirise the Prime Minister's already well-known admiration for Sir Donald Bradman. If I am wrong in my conclusion as to Ten's 103A defence as to criticism and review, I would have found in favour of Ten on the issue of "sufficient acknowledgment". I am unable to understand why Ten's use of the so-called "on screen watermark `Ch 9'" was not sufficient identification of the fact that the "Midday" programme footage had been originally broadcast by Nine. To the average viewer, the material re-broadcast would have identified to him or her the source of the re-broadcast footage to Nine, without even the need to add Nine's logo (cf the dictum extracted from Pro Sieben at [54] above where a German television company had broadcast to the United Kingdom). I should add that where the on-screen watermark "Ch 9" has been used elsewhere in Ten's re-broadcasts the subject of the proceedings (see iv-vii, xi, xiii-xvi, xviii-xx), there was constituted a sufficient acknowledgment with s 103A.

(iii) "Wide World of Sports" (Grand Final Celebrations)

This re-broadcast of two pieces of Nine footage of the Rugby League Grand Final winning team's post match, though still on field, celebrations, focused upon the winning Melbourne Storm captain Glen Lazarus, and to a lesser extent the team members. Such events took place in the context of preceding and subsequent footage of other recent sporting events involving Australian participants, which other footage did not however originate from Nine. In support of its fair dealing defence of criticism and review, Ten contended that its programme's alleged criticism and review was constituted by "... a discussion of the underlying activity of exuberant behaviour by sportsmen shown in the footage". In my opinion, the exuberant behaviour of Mr Lazarus and any members of his team was not the subject of criticism or review on the part of Ten, nor did The Panel members explicitly do or say anything approaching the true notion of criticism and review, irrespective of what might conceivably be said about the other footage of sporting situations contemporaneously re-broadcast by Ten from non-Nine sources. I would refer again to the dictionary definitions as to "criticism" and "review" extracted from De Garis at [48] above. I record that if I am wrong in that conclusion, no issue is raised by Nine as to the absence of sufficient acknowledgment. Whether Ten is correct in its contention that its re-broadcast of this Nine footage was a fair dealing for the purpose of reporting news within s 103B(1)(b) raises the more imponderable or elusive distinction between news and entertainment [58]. In my opinion, the balance falls on this occasion sufficiently clearly in favour of entertainment, albeit not of a satirical but rather of a light hearted and amusing kind. It follows that if Ten had not succeeded on the ground of substantiality, I would not have upheld either of the fair dealing defences discussed above.

(iv) "A Current Affair" (Masquerade of Introduction Agency)

Ten contends that this re-broadcast was a fair dealing for the purpose of criticism or review of "A Current Affair" episode, by reference to such programme's use of "poor disguises", who appeared thereon, first of a member of the public who unwittingly visited a brothel in the belief that it was an introduction agency, and secondly of a person employed at the brothel as a receptionist. The Executive Producer of "A Current Affair" admitted in cross-examination that "... a disguise is a disguise and if you had known the person well I'd reckon by and large they're not hard to see through". Ten was able to make entertaining mileage out of its rival's unsuccessful efforts in seeking to adequately disguise these two members of the public who had apparently volunteered to appear on Nine's programme. After the re-broadcast by Ten of the Nine episode had occurred, one member of The Panel put on a replica of the facial disguise of the male person interviewed on the Nine episode the subject of the re-broadcast, which occasioned further mirth to The Panel members and their studio audience. Whilst bearing in mind that this re-broadcast by Ten was made in purported derogation of its business rival's practices, albeit in an entertaining way and in circumstances involving an element of public interest, the essence of the theme the subject of the Ten re-broadcast seems to me to marginally weight the balance in favour of Ten's establishment of the statutory purpose of criticism or review. It is legitimate to criticise a rival telecaster for inadequately protecting the anonymity of its interviewees, even if the criticism takes advantage of humorous incidents to the rival's inadequacy. Nine has further contended that there was nevertheless absent fair dealing, because the "Simply the Best" re-broadcast on the part of Ten addressed in sub-paragraph (xv) below occurred in the same evening's programme of The Panel, but I do not think that such circumstance is material to the issue of fair dealing purpose, such as deprive the otherwise availability of the defence. Accordingly had Ten not succeeded on the issue of substantiality, I would have ruled in its favour on the issue of criticism or review.

(v) "Australia's Most Wanted" (Aria Award)

Ten contends that this re-broadcast constituted a fair dealing for the purpose of criticism or review "... of the Aria Awards programme and of the dramatic work being the staging of the performance by Vanessa Amorosi thereby depicted". The Aria Awards programme is or was a Ten production, in which Vanessa Amorosi played a performing musical role. Thus Ten purportedly invokes the limb or component of s 103A relating to "another audio-visual item or work". Nine contends in that respect that there is no connection of any relevance between the two programmes for s 103A purposes, and I think that is clearly correct. Section 103A does not authorise the re-broadcast of television broadcast copyright merely to set the context whereby the re-broadcaster thereafter supposedly criticises or reviews its own television broadcast as distinct from the re-broadcast. Furthermore, there can be no justifiable basis for Ten's apparent contention that by this re-broadcast of its own television broadcast in the context of its contemporaneous re-broadcast also of the Nine broadcast, Ten thereby criticised or reviewed the latter within s 103A. Nine is correct in its contention as to Ten having used its own Amorosi footage for purposes merely of humour. Accordingly the Ten s 103A defence here advanced must fail on any view of the way it is intended to operate. The s 103B(1)(b) defence should also fail, since the re-broadcast was undertaken by Ten for the purpose of providing a merely contextual theme as a basis for generating humour from Ten's own audio-visual item, there being no reporting of news the subject of any true purpose of Ten, nor any association of Nine's footage with any supposed reporting of news by Ten. It follows that had Ten failed on the issue of substantiality, I would have found that no fair dealing defences would have been open to Ten.

(vi) "Pick Your Face" (Kerri-Anne Kennerley)

Ten has raised here the defence of fair dealing for the purpose of criticism or review, the criticism being of the above re-broadcast audio-visual item and of "underlying work including the artistic work that the child contestant was manipulating", and the criticism taking the form of "a character of some colourfulness from one television programme (The Drew Carey Show) [being] confused with the Channel Nine personality Kerri-Anne Kennerley". There was no purpose of criticism or review, the re-broadcast being used by Ten for the purposes of entertainment. Perhaps it is appropriate to refer again to the observation of Beaumont J in De Garis that the statutory expressions "criticism" and "review" involved the passing of judgment.

(vii) "Crocodile Hunter" (Scuba Diving)

It is first appropriate to explain the context to this re-broadcast. Nine's "Crocodile Hunter" television programme features Mr Steve Irwin. Some ten years ago or thereabouts, Ten broadcast a comedy programme called "The Comedy Company", which featured Mr Glen Robbins playing the role of "Uncle Arthur". Mr Robbins is a member of The Panel. This re-broadcast displayed Mr Irwin swimming underwater in the presence of sharks, equipped with breathing apparatus and microphone. Mr Irwin sounded like "Uncle Arthur" when he spoke underwater. Mr Robbins prefaced Mr Irwin's underwater commentary as follows:

"I think I've been ripped off. I could be paranoid but on Saturday night there was a programme The Crocodile Man and look I could be wrong - I don't know - I may be way out of line here. But I think he's ripping off one of my characters. You make up your own mind.... He's underwater."

Ten raised the s 103A defence of fair dealing way of criticism and review. Plainly in my opinion, no criticism or review explicitly or implicitly was undertaken by Ten in the context of this amusing re-broadcast. Accordingly had Ten failed on the issue of substantiality, I would have held that Ten failed to make out its s 103A defence.

(viii) "Days Of Our Lives" (Marlena Standing)

The evidence discloses that "Days Of Our Lives" has been broadcast by Nine since about 1962 or 1963, and for probably the last fifteen years, the programme has been Nine's highest rating day time show. Nine's Director of Programmes agreed to the description of the programme as "a dramatic soap opera", and as containing "elements of melodrama", and "a lot of tongue in cheek scenes". Its television audience is indicated in the evidence to be mainly female. The female character Marlena has been displayed on the programme as devil possessed, and the re-broadcast scene shows her on a balcony in that condition. Ten raised the s 103A defence of criticism and review, upon the basis that the footage demonstrates that the script writers of "Days Of Our Lives" are undertaking recourse to rather desperate and pathetic measures to prolong the life of an already protracted and attenuated day-time television programme. Part of The Panel commentary includes the following:

"The writers sit around and they go... they've gone after 10 or 11 years and they've gone "guess we've got to make someone possessed."

The commentary of The Panel, and the way in which the visual images are re-broadcast, undoubtedly involve a measure of satire and humorous entertainment, but they are relevantly more than that. As a matter of fact and impression, the commentary and the visual images imply a purpose of criticism and review, in the sense of the dictionary definitions reproduced in [48] above, and do so on the footing of an innuendo of loss of originality and novelty of theme. My conclusion is that the re-broadcast was undertaken for the purposes of criticism and review, and in the circumstances such criticism and review was fair for such purposes, albeit that the same emanated from a rival television station.

(ix) "Days Of Our Lives" (Marlena Levitating)

What I have observed and concluded in sub-paragraph (viii) above applies equally to the re-broadcast of the following day's programme of "Days Of Our Lives". Thus Ten would have made out the s 103A defence here as well.

(x) "Simply The Best" (Ray Martin)

Ten raises the defence of fair dealing for purposes of criticism and review in relation to this re-broadcast. No issue is raised by Nine as to sufficient acknowledgment. Ten frames its contention as follows:

"The underlying artistic work was a design for the set which was criticised. The underlying method of scoring which was the outcome of a literary work, being a treatment for the programme, was criticised. It is not necessary to criticise the audio-visual item, being the programme Simply The Best, itself, although that was also undertaken."

The essence or substance of The Panel's commentary upon the footage here re-broadcast was mainly a discussion of what had occurred on the Nine "Simply The Best" programme, and an answering of the questions of those members of The Panel who had watched it or who had not understood it. There was however a somewhat oblique reference to "the set" in the following terms:

"... this is the program on Channel Nine last night with Ray Martin? The voting one?

Yes

I think he should have come out dressed in a toga.

The set was a little...

Perplexing.

It was sort of like the seats were `Who Wants To Be A Millionaire' meets the desks of `The Footy Show' meets an inner-city brothel. It was just... what I imagine an inner-city brothel would look like is what I mean...

Yeah, isn't that... they've recycled a few sets there.

Oh dame it... he didn't keep going because he actually said the joke `How about the set eh?' Funny thing happened on the way to the forum."

However the paucity of evidence as to what was in substance the criticism of the so-called "set" has not left a viable basis for comprehending, much less resolving, what was the true nature of the alleged criticism, and what was the purported basis therefore.

There is insufficient evidence upon which I could have made a finding in favour of Ten, pursuant to s 103A, and had it been necessary so to do, I would have rejected Ten's defence of criticism and review.

(xi) "The Inaugural Allan Border Medal Dinner" (Prime Minister Embarrassed)

Ten raises the defence of fair dealing for the purpose of reporting news in relation to this re-broadcast. Ten has submitted that it was the televising of the "excision by The Panel" (namely that part of the Nine footage showing Mr Glenn McGrath not noticing the Prime Minister's attempt to congratulate him) that created what would otherwise have remained "hidden" news within s 103(1)(b), and Ten points to a famous photograph of a very young President Clinton shaking the hand of US President John F Kennedy, which photograph had remained unnoticed and unimportant for some thirty years until the former President's own election. There is evidence to the effect that the "hidden" image of the Prime Minister had not been noticed by Nine's Director of Sports, who said with the benefit of hindsight "... if it were you or me I'd want [it] edited out now that it's been drawn to public attention. He looks silly." Ten submits that unusual or incongruous moments in an Australian Prime Minister's life are inherently and necessarily news, and relies on evidence to such effect given by Nine's Director of News in cross-examination. I am of the opinion that Ten's submission is on balance correct, and that Nine's submission that "It was only The Panel antics which caused anyone to think twice about it" is not to the point. The situation here is I think materially distinguishable from the re-broadcast involving the Prime Minister appearing on "Midday" (sub-paragraph (ii) above), which I have found did not involve the reporting of news for the reasons there indicated. If it had become necessary for me to have done so, I would have upheld Ten's defence here as to the purpose of reporting of news.

(xii) "Sunday" (Drugs at Olympics)

Ten raises the defence of fair dealing for the purpose of reporting news in relation to this re-broadcast. The re-broadcast occurred ten days after Nine's original broadcast, the latter having "... generated an enormous amount of news attention", as Nine's executive producer of "Sunday" acknowledged in evidence. Nine contends that this footage was not presented by The Panel as a news report, the Nine broadcast having taken place ten days earlier, but Nine propounds an unjustifiably restrictive view of the nature of news (see again John Fairfax in [49] above). In my opinion, the subject re-broadcast by Ten constituted perhaps the clearest exemplification of its s 103(1)(b) defences as to reporting of news which have been propounded in the proceedings, and the same would have sustained in this judgment, had Ten failed on the issue of substantiality in the first place. The theme of The Panel commentary on this re-broadcast on its part was that the allegations of drug-taking made on the Nine footage by a so-called Sports Performance Consultant constituted gross exaggeration, yet had been inappositely made in the context of the pending Olympic Games in Sydney. Drug taking in sport has been of course a very live and public issue in Australia for some considerable time. Despite the serious nature on this occasion of The Panel's discussion in relation to Nine's footage, one member of The Panel introduced a measure of satire to the discussion, namely:

"Kill the athletes, after you keep one bullet in the starting gun. So when the first rig is propped... take it to Quincy... he works it all out and then we say we will award the medal posthumously with a stretcher on a dais. It is the only answer."

Otherwise, the discussion amongst The Panel members and their guest member was essentially serious and focussed in its repudiation of what Nine's programme guest had been saying on the widespread use of drugs by elite athletes. Nine disputes the existence of fair dealing, contending that the use of the footage was not necessary for the purpose of asking the questions which were put to the Panel guest member. Nine further contends that the extensive nature of the usage was inherently unfair, and that this was only one of two re-broadcasts of Nine footage made in this particular evening's programme of The Panel, the other being that the subject of sub-paragraph (xiii) below, which was however related to a Nine programme originally broadcast on a different occasion to that of the "Sunday" programme here involved. I do not think that Nine's submissions are sufficient to gainsay the news reporting defence. Ten did not maintain a criticism or review defence. In the result, had Nine succeeded on the substantiality issue in relation to this re-broadcast, I would have upheld Ten's defence of fair dealing for the purpose of reporting news.

(xiii) "The 72^nd Academy Awards" (Artificial Fog)

The defence here raised by Ten is fair dealing for the purpose of criticism or review. The purpose of the Academy Awards programme is to choose the best male actor and the best female actress. That part re-broadcast featured the well known US singer Isaac Hayes, and the same focused for purposes of humour upon him becoming mistakenly enveloped in an artificially contrived fog by reason of accidental misuse of the studio's fog machines. The Panel's point is that the televising of such a premier event should have been better controlled technically in order to avoid the mishap which occurred to Isaac Hayes in the course of his performance. Its dialogue concerning this brief mishap was as follows:

"Did you see that? ...Have a look at this. Isaac Hayes comes out...

This is great.

Okay, okay Ken is going to stop the fog machine now. ...He's distracted by the girls... oop... the fog machine. We've lost Isaac Hayes. Isaac Hayes is in the middle of that fog. Do they go the wide shot they go... okay the fog machine... back again.

Oh no.

This is.

That's really bad.

That's a pea souper.

That's a real pea souper. It is like an early Countdown.

Can I say.

It is.

..."

Because of the humorous, if not hilarious, treatment by The Panel of this footage, an initial reaction may well be that the purpose of this re-broadcast was light satire in the nature of entertainment proffered by a rival television station, and did not involve the passing of judgment on the merits of Nine's television presentation (see again the dictionary definitions and commentary extracted from De Garis in [48] above). My conclusion is that criticism or review do not necessarily exclude notions of comedy or satire, even though expressed lightly. As was said in Vosper, "But after all is said and done, it must be a matter of impression" [49], and my impression on a somewhat precarious balance is in favour of a justifiable Ten purpose here involved of criticism and review. Consequently had I not found in favour of Ten upon the issue of substantiality, I would have found that the defence of fair dealing for the purpose of criticism or review had been made out.

(xiv) "Sale Of The New Century" (Lighting Switched Off)

Ten seeks to maintain the defence of fair dealing for the purpose of criticism and review by reference to the introduction by Nine in the preceding February of a change in format which signalled the departure of one of the remaining contestants by way of putting that losing contestant in a dark shadow, so that he or she was no longer recognisable. The "Sale Of The New Century" had already been running for about nineteen years. The commentary by The Panel members humorously described this change as a "scandal", and some of the other comments were as follows:

"... they put the loser in the dark now, if you lose they knock you out".

"They don't make them leave... they let them sit in the dark."

"You wouldn't want to be afraid of the dark."

"Hey I love it."

Whilst criticism and review "are expressions of wide and indefinite scope" (Pro Sieben at [52(iv)]), minds may differ as to whether the dictionary definitions are here fulfilled in relation to what is at least light humour or entertainment. With some difficulty but nevertheless on balance, I think that The Panel's purpose in using this excerpt of Nine footage was to lightly and humorously criticise or review Nine's technical programming procedure recently introduced to this long running programme. If therefore Ten had not succeeded on the issue of substantiality, I would have upheld this defence.

(xv) "The Today Show" (Prasad Interview)

A not dissimilar issue arises again as in "The Sale Of The New Century". The Nine interviewer is shown as engaging in a serious interview of the manager of the Matthew Talbot Hostel, whilst apparent occupants of the Hostel visibly, though not audibly, intrude into the visual images of the interviewee. A Nine supervising producer agreed in cross-examination that if Nine was to decide to re-run this material again, Nine would exclude "the footage where people were interfering with the flow between Mr Liebmann and Mr Prasad". This Ten re-broadcast, it may be said, encaptures the perils of live interviews on television. Again on balance, I think that the purpose in using this excerpt was to lightly and humorously criticise, and I therefore, and not without some difficulty, repeat the conclusion reached in favour of Ten, as in the preceding paragraph.

(xvi) "The Today Show" (Opera House)

This excerpt relates to children rehearsing on the Sydney Opera House steps a song intended to be used at the Sydney Olympic Games, having been released not long before the Nine broadcast, and televised by the same "The Today Show" earlier in the day. Interspersed amongst the lyrics is the Australian slang "G'day G'day". Nine's supervising producer gave the following testimony under cross-examination.

"Yes, so it was something that SOCOG had endorsed - Yes.

To be used by various groups as a part of the means of welcoming visitors is it? Yes.

For the Olympic period? Yes.

So it was a matter of some interest because it was going to be the song that Australia was putting forward to those visitors as a note of welcome? Certainly, yes.

The quality of the song and the choice of the song was a matter of news at that time? Yes."

I accept the submission of Ten that the re-broadcast was a fair dealing for the purposes both of criticism and review and of reporting news. It follows that had Ten not succeeded on the issue of substantiality, I would have found that such defences had been made out.

(xvii) "Nightline" (Gosper Interview)

The defences both as to criticism and review and as to reporting of news were not maintained by Ten, and if I may say so, rightly not maintained, as I would have rejected the same.

(xviii) "Newsbreak" (Technical Glitch)

Ten has maintained its defence of fair dealing for the purpose of criticism and review. This technical glitch involved the appearance of the presenter of "Newsbreak" being accidentally shrunk or abbreviated to a very small size of what would have been intended. Why the glitch occurred is not known. The dialogue included the following"

"Can we show a few moments... live television fraught with peril as what we all know here on The Panel... a couple of moments of Channel Nine News this week... can we have a look at a bit of Peter Hitchner in action... Channel Nine News.

Never quite learn.

He wasn't meant to be a web site.

Oh, you blew it but we can top that..."

The nature of the criticism or review issue here arising is somewhat similar to that arising in sub-paragraph (xv) above, the criticism being made in a humorous way. Further, the re-broadcast, by Ten and the above commentary by the Panel, are said to demonstrate that live television can result in embarrassing circumstances for a broadcaster, here of course Channel Nine. Had I not found in favour of Ten on the issue of substantiality, I would have upheld Ten's defence of criticism and review.

(ixx) "Who Wants To Be A Millionaire" (Ingredients of Xmas Pudding)

The defence of fair dealing for the purpose of criticism and review has been maintained by Ten in relation to "at least... the literary work... included in the [audio-visual] item", upon the footing that "the question being criticised [is] too easy". I would extract from the transcript of The Panel commentary below, by way of illustration of the defence so framed:

"Because it depends like the categories... like are very widely spread so in every category the questions are quite easy but if you don't know everything about that category then you're still lost.

Also my lifelines, my phone a friend, I mean look at them.

The early questions are getting a bit easier... in Who Wants to be a Millionaire?

I know because they have expanded the format.

They've sped it up.

And they go did we have like... I think Eddie even laughed at this the other night... Have a look at his for $100."

Again the criticism proffered is undertaken in a humorous or lightly entertaining way. I think that the defence of criticism and review has nevertheless been made out, and again there has been "sufficient acknowledgment" by at least reason of the display of "Ch 9".

(xx) "The Today Show" (Child Yawning)

Ten summarises its defence of fair dealing, for the purpose of review alone, essentially as follows:

"The context shows that The Panel is reviewing a brief piece of live television and, again, through the intermediate medium of television showing how precarious that can be."

Nine joins issue as follows:

"There are no words of criticism. There is no discussion about the particular questions asked or the style of the interview. There was no genuine criticism."

I think that Nine's submission is correct. What was televised here was an interview by Richard Wilkins of a child who yawns when he is asked a question. The child was apparently a minor celebrity who was featured on that particular morning's programme. I do not think that the Ten defence of review should succeed. As the dictionary definition indicates (see [48] above), "review" is nevertheless "a critical article" or "a critique". The re-broadcast here, focusing as it does on the child yawning during the interview, might well illustrate how "precarious" television may be, as Ten submits above, but that does not give the re-broadcast the attribute of review. Had Ten not succeeded on the issue of substantiality, I would have dismissed the defence here of review.

73 I therefore summarise my findings upon the fair dealing defences for purposes of criticism or review and of reporting news as follows:

Fair dealing defences which would have been upheld if breach of copyright had been found to have occurred

Criticism or Review	Reporting News
"A Current Affair" (Masquerade of Introduction Agency)
"Days Of Our Lives" (Marlena Standing)
"Days Of Our Lives" (Marlena Levitating)
	"The Inaugural Allan Border Medal Dinner" (Prime Minister Embarrassed)
	"Sunday" ("Drugs at Olympics)
"The 72nd Academy Awards" (Artificial Fog)
"The Sale Of The Century" (Lighting Switched Off)
"The Today Show" (Prasad Interview)
"The Today Show" (Opera House)	"The Today Show" (Opera House)
"Newsbreak" (Technical Glitch)
"Who Wants To Be A Millionaire" (Ingredients of Xmas Pudding)

Fair dealing defences which would have been rejected if breach of copyright had been found to have occurred

Criticism or Review	Reporting News
	"The Today Show" (Boris Yeltsin)
"Midday" (Prime Minister Singing)	"Midday" (Prime Minister Singing)
"Wide World of Sports" (Grand Final Celebration)	"Wide World of Sports" (Grand Final Celebration)
"Australia's Most Wanted" (Aria Award)
"Pick Your Face" (Kerri-Anne Kennerley)
"Crocodile Hunter" (Scuba Diving)
"Simply The Best" (Ray Martin)
"The Today Show" (Child Yawning)

I have not referred to those fair dealing defences which were withdrawn at the time of or prior to final written submissions, nor to "Nightline" (Gosper Interview), concerning which re-broadcast both defences were withdrawn in Ten's final address.

74 In the result, I dismiss the causes of action for breach of television broadcast copyright brought by Nine based upon s 87(c) of the Act. I invite submissions as to costs in the light of the findings thus far made, including provisional findings as to the fair dealing defences. I stand over the proceedings for mention for the purpose of fixing a date for hearing of the causes of action brought by Nine based upon s 87(a) of the Act.

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 20 February 2001

Counsel for the Applicant:	Mr A.J.L. Bannon SC Dr D.T. Kell
Solicitor for the Applicant:	Gilbert & Tobin
Counsel for the Respondent:	Mr J.M. Ireland QC Mr R. Cobden
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	13-17, 22-23 November 2000
Date of Judgment:	20 February 2001