Mee, Ben --- "Laughing Matters: Parody and Satire in Australian Copyright Law" [2010] JlLawInfoSci 4; (2010) 20(1) Journal of Law, Information and Science 61

^* BSc-LLB (Hons) (University of Tasmania). Law Graduate, Allens Arthur Robinson, Melbourne, < Ben.Mee@aar.com.au>.

¹ TCN Channel Nine Pty Limited v Network Ten Limited [2001] FCA 108 (‘Panel 1’); TCN Channel Nine Pty Ltd v Network Ten Pty Limited [2002] FCAFC 146 (‘Panel 2’); Network Ten Pty Ltd v TCN Channel Nine [2004] HCA 14 (‘Panel 3’); TCN Channel Nine Pty Limited v Network Ten Pty Limited (No 2) [2005] FCAFC 53 (‘Panel 4’).

^[2] Melissa De Zwart, ‘Australia’s Fair Dealing Exceptions: Do they Facilitate or Inhibit Creativity in the Production of Television Comedy?’ in Andrew Kenyon (ed), TV Futures: Digital Television Policy in Australia, (University of Melbourne Legal Studies Research Paper No 273, Melbourne University Press, 2007) 166, available at SSRN <http://ssrn.com/abstract=1025774> .

^[3] Attorney-General’s Department, Fair Use and Other Copyright Exceptions: An Examination of Fair Use, Fair Dealing and Other Exceptions in the Digital Age, Issues Paper, (May 2005). See below at Part 4 of this paper for a discussion of the push for reform and the reform process itself.

^[4] Commonwealth, Second Reading Speech, Copyright Amendment Act 2006, House of Representatives, 19 October 2006 (Philip Ruddock, Attorney-General).

^[5] Contained in ss 41A, 103AA of the Copyright Act 1968 (Cth).

^[6] Ibid, s 87.

^[7] Ibid, ss 10(1), 14(1), 36, 101.

^[8] ‘Audio-visual item’ is defined in s 100A to include a broadcast.

^[9] Section 103A of the Act provides that the criticism or review may be of the audio-visual item, another audio-visual item or a work but sufficient acknowledgement of the audio-visual item used must be made.

^[10] See further Part 4.

^[11] The leading case was the single judge decision in De Garis v Neville Jeffress Pidler Pty Ltd [1990] FCA 352; (1990) 18 IPR 292.

^[12] See further Part 5.

^[13] Contained in ss 40, 103C of the Act. These factors are loosely based on the US fair use model, including the purpose of the dealing, the nature of the material used and market impact.

^[14] Hubbard v Vosper [1972] 2 QB 84, 94.

^[15] Panel 2 [2002] FCAFC 146, [17] (Finkelstein J).

^[16] Panel 1 [2001] FCA 108, [68].

^[17] Ibid, [41].

^[18] Panel 2 [2002] FCAFC 146, [13] (Finkelstein J).

^[19] Conti J’s findings in relation to a number of excerpts were not appealed.

^[20] Panel 3 [2004] HCA 14, [79].

^[21] Panel 4 [2005] FCAFC 53.

^[22] See, eg, Michael Handler and David Rolph, ‘A Real Pea Souper: The Panel Case and the Development of the Fair Dealing Defences to Copyright Infringement in Australia’ [2003] MelbULawRw 15; (2003) 27 Melbourne University Law Review 381; Melissa De Zwart, ‘Seriously Entertaining: The Panel and the Future of Fair Dealing’ (2003) 8(1) Media & Arts Law Review 1.

^[23] Panel 2 [2002] FCAFC 146, [22] (Finkelstein J).

^[24] Panel 1 [2001] FCA 108, [72].

^[25] Panel 2 [2002] FCAFC 146, [110] (Hely J).

^[26] Ibid, [3] (Sundberg J).

^[27] Ibid, [20] (Finkelstein J).

^[28] Panel 1 [2001] FCA 108, [72].

^[29] Panel 2 [2002] FCAFC 146, [122]. While this statement goes to the denial of the use as ‘news’, it may suggest that the Court inappropriately focused on the interests of a third party whose actions were targeted in the use. This is discussed further in Part 5 below.

^[30] Panel 1 [2001] FCA 108, [72].

^[31] Panel 2 [2002] FCAFC 146, [5] (Sundberg J), [112–113] (Hely J).

^[32] Ibid, [22].

^[33] Panel 4 [2005] FCAFC 53, [39].

^[34] Ibid, [33].

^[35] Ibid, [66].

^[36] Ibid, [63].

^[37] Ibid, [34].

^[38] See, eg, Handler and Rolph, De Zwart, above n 22.

^[39] Panel 1 [2001] FCA 108, [37].

^[40] [1972] 2 QB 84, 94.

^[41] Handler and Rolph, above n 22, 406.

^[42] [1972] 2 QB 84, 94.

^[43] The discussion of the Court essentially focuses on whether or not the purpose was news, or criticism and review with a heavy focus on the dictionary meaning of those words.

^[44] Handler and Rolph, above n 22, 390.

^[45] See, eg, Andrew Bock, ‘Satire is Out? They Can’t be Serious’, The Sydney Morning Herald (Sydney), 30 May 2002, 13; ‘Freedom of Speech at Risk’, The Australian Financial Review (Sydney), 30 May 2002, 62.

^[46] Melissa De Zwart, ‘Fair Use? Fair Dealing?’ (2006) 24(1& 2) Copyright Reporter 20, 32.

^[47] See particularly De Garis, Panel 1 [2001] FCA 108. Although the term ‘fair’ is not restricted by dictionary definitions, the extensive analysis of the meanings of each head of fair dealing arguably shifts the focus away from the question of fairness, as was seen in The Panel Case.

^[48] De Zwart, above n 46, 20.

^[49] Kimberlee Weatherall, ‘Locked In: Australia Gets a Bad Intellectual Property Deal’ (2004) 20(4) Policy: a Journal of Public Policy and Ideas 18, 19.

^[50] For an excellent discussion of the AUSFTA process, see Catherine Bond, Abi Paramaguru and Graham Greenleaf, ‘Advance Australia Fair? The Copyright Reform Process’ (2007) 10(3/4) The Journal of World Intellectual Property 284.

^[51] Weatherall, above n 49, 19.

^[52] Attorney-General’s Department, above n 3, 36.

^[53] Sally McCausland, ‘Protecting “A Fine Tradition of Satire”: The New Fair Dealing Exception for Parody or Satire in the Australian Copyright Act’ (2007) 29(7) European Intellectual Property Review 287, 289.

^[54] Andrew Gowers, Gowers Review of Intellectual Property, (HM Treasury, London, December 2006).

^[55] For a more comprehensive discussion of the Gowers Review and its implications see, eg, Peter Groves, ‘There’s Nothing New Around the Sun: Everything You Think of Has Been Done’ (2007) 18(4) Entertainment Law Review 150; D Bainbridge, ‘The Gowers Review of Intellectual Property’ (2006) 11(6) Intellectual Property & Information Technology Law 4; Hubert Best, ‘All Change’ on Copyright?’ (2007) 65 European Lawyer 9. The Attorney-General’s Office released a statement in December 2006 stating that the Gowers Review has taken the same approach as the Australian Government. See <http://www.ag.gov.au/agd/www/ministerruddockhome.nsf/Page/Media_Releases_2006_Fourth_Quarter_2332006_-10_December_2006_-_British_report_follows_Australia&apos (11 October 2007).

^[56] The most significant challenge to date related to an exception in the US legislation, which allowed small businesses to play broadcast copyright musical content under defined conditions. The EU challenged the provision as being non-compliant with Article 13 and succeeded. The decision of the dispute resolution body provides much of the material used in interpreting the three-step test and is discussed in more depth later in this Part.

^[57] De Zwart, above n 46, 20.