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Handler, Michael; Rolph, David --- "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(2) Melbourne University Law Review 381

[*] BA, LLB (Hons) (Syd), LLM (London), RIRDC Research Fellow, Australian Centre for Intellectual Property in Agriculture, The Australian National University.

[†] BA (Hons), LLB (Hons) (Syd), Part-time Lecturer and Doctoral Candidate, Faculty of Law, The University of Sydney.

Our thanks go to Robert Burrell, Megan Jones, Kim Weatherall and the two anonymous referees for their helpful comments in the preparation of this article.

[1] TCN Channel Nine v Network Ten [2001] FCA 108; (2001) 108 FCR 235 (Conti J) (‘The Panel Trial’).

[2] TCN Channel Nine Pty Ltd v Network Ten Pty Ltd [2002] FCAFC 146; (2002) 118 FCR 417 (Sundberg, Finkelstein and Hely JJ) (‘The Panel Appeal’).

[3] Section 103A of the Act states:

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.

Section 103B of the Act states:

(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 a communication or in a cinematograph film.

[4] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 240.

[5] Ibid 286–7.

[6] Ibid 290–1.

[7] Ibid 291.

[8] Ibid 295.

[9] Ibid 298.

[10] Ibid.

[11] Ibid 299; The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 445 (Hely J).

[12] Peter Meakin, then director of news and current affairs at Nine, stated (in relation to another Ten programme): ‘I’m reluctant to accuse [Ten] of theft, but in Saudi Arabia they’d have their hands chopped off’: see John Little, ‘“Fair Dealing” Fuels Foul Calls’, Media, The Australian (Sydney), 3 February 2000, 3. These comments were criticised as being disingenuous in light of Nine’s own practices: see ABC Television, Media Watch, 7 February 2000 <http://www.abc.net.au/mediawatch/transcripts/s98367.htm> (but not, unfortunately, for their racial stereotyping).

[13] Pursuant to s 101 of the Act (infringement), in relation to Nine’s exclusive rights under s 87(c) (rebroadcasting a substantial part of Nine’s television broadcasts) and s 87(a) (making cinematograph films of Nine’s television broadcasts).

[14] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 289–90.

[15] In relation to the six excerpts considered above, Ten argued that its rebroadcasts of the ‘Days of Our Lives’, ‘72nd Academy Awards’ and ‘The Today Show’ (Prasad interview) excerpts were fair dealings for the purpose of criticism or review, that its rebroadcasts of the ‘The Today Show’ (Boris Yeltsin) and ‘Sunday’ excerpts were fair dealings for the purpose of news reporting and that its rebroadcast of the ‘Midday’ excerpt was a fair dealing for the purposes of both criticism or review and of news reporting: ibid 290–9.

[16] Ibid.

[17] TCN Channel Nine v Network Ten [No 2] [2001] FCA 841; [2001] AIPC 91-732.

[18] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 419 (Sundberg J), 422 (Finkelstein J), 435, 437 (Hely J).

[19] Ibid 422 (Finkelstein J), 436 (Hely J).

[20] Ibid 436 (Hely J).

[21] Ibid.

[22] Ibid.

[23] The correctness of the Full Court’s decision on copyright infringement is beyond the scope of this article. However, although it has received some support in principle (see Staniforth Ricketson and Christopher Creswell, The Law of Intellectual Property: Copyright, Designs and Confidential Information (2nd revised ed, 2002) [8.100]), it has worrying implications. It is suggested that the Full Court failed properly to consider whether the definition of ‘television broadcast’ in the Act is intended to provide any quantitative standard or, because of the evanescent nature of a broadcast, whether it is merely meant to indicate the material in which the copyright exists (‘visual images’), leaving quantitative issues to be determined by other standards. As a result, the Full Court’s findings on subsistence and infringement make the notion of ‘substantial part’ in s 14(1)(a) of the Act redundant by glossing over the fact that the visual images extracted from a television broadcast only have real market value when viewed in relation to the complete programme, segment or advertisement from which the extracts are taken (see Sir Hugh Laddie et al, The Modern Law of Copyright and Designs (3rd ed, 2000) [8.37]) as well as glossing over the reasons for the defendant’s rebroadcast of the plaintiff’s material. In addition, the Full Court’s approach has implications for the use of sound broadcasts (such as radio programmes), which are defined in s 10(1) of the Act as ‘sounds broadcast otherwise than as part of a television broadcast’. On the reasoning of the Full Court, the rebroadcast of, or the making of a sound recording of, any ‘sounds’, no matter how brief and regardless of their qualitative significance, will be an infringement of copyright in the sound broadcast. The High Court has granted special leave to hear Ten’s appeal on the issue of infringement of copyright in a ‘television broadcast’: Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2003) 24(8) Leg Rep SL5. See Michael Handler, ‘Before the High Court: The Panel Case and Television Broadcast Copyright’ (2003) 25 Sydney Law Review 395.

[24] [1990] FCA 352; (1990) 37 FCR 99 (‘De Garis’).

[25] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 275–6.

[26] De Garis [1990] FCA 352; (1990) 37 FCR 99, 107. Beaumont J defined the term ‘criticism’ thus:

The Macquarie [Dictionary] definition of ‘criticism’ includes the following:

‘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.’

In my opinion, ‘criticism’ in the context of s 41 is used in these senses.

Beaumont J defined the term ‘review’ thus (ellipsis in original):

The Macquarie [Dictionary] definition of ‘review’ includes the following:

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

In my opinion, ‘review’ is used in s 41 in this sense.

[27] Ibid 109–10.

[28] [1972] EWCA Civ 9; [1972] 2 QB 84.

[29] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 276, 281–2.

[30] [1999] FCA 1864; (1999) 48 IPR 333 (‘Nine v ABC’).

[31] Ibid 340.

[32] [1973] 1 All ER 241.

[33] [1992] Ch 141 (‘BBC v BSB’).

[34] [1994] EMLR 1 (‘Time Warner’).

[35] [1999] 1 WLR 605 (‘Pro Sieben’).

[36] [2001] Ch 143 (‘Hyde Park’).

[37] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 285.

[38] The first clause of this principle is derived from Hubbard v Vosper [1972] EWCA Civ 9; [1972] 2 QB 84, 94 (Lord Denning MR). The requirement that fair dealing is to be judged according to the standard of a ‘fair minded and honest person’ is based on Hyde Park [2001] Ch 143, 159 (Aldous LJ). The notion that fair dealing is an ‘abstract concept’ is based on a dictum of Gibbs J in the High Court case of University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1, 12.

[39] This principle is based on a circumlocutory passage in Beloff v Pressdram Ltd [1973] 1 All ER 241, 262 (Ungoed-Thomas J), quoted in its entirety by Conti J in The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 277. The requirement that fairness be judged ‘objectively’ is based on Pro Sieben [1999] 1 WLR 605, 614 (Robert Walker LJ) and Hyde Park [2001] Ch 143, 159 (Aldous LJ): The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 278–9.

[40] The statements that ‘criticism and review are words of wide and indefinite scope which should be interpreted liberally’ and that ‘criticism and review may be strongly expressed’ are based on Pro Sieben [1999] 1 WLR 605, 613–14 (Robert Walker LJ). The statement that ‘criticism and review involve the passing of judgment’ has its origin in De Garis [1990] FCA 352; (1990) 37 FCR 99, 107 (Beaumont J).

[41] The requirements that criticism and review be ‘genuine’ and ‘not a pretence for some other form of purpose’ are based on statements of Henry LJ in Time Warner [1994] EMLR 1, 14–15 (quoted in Pro Sieben [1999] 1 WLR 605, 613 (Robert Walker LJ)). The principle that genuine criticism or review may be ‘unbalanced’ was enunciated in both Time Warner [1994] EMLR 1, 14 (Henry LJ) and Pro Sieben [1999] 1 WLR 605, 613 (Robert Walker LJ).

[42] The reference to an ‘oblique’ motive has its origins in the English High Court case of Johnstone v Bernard Jones Publications Ltd [1938] 1 Ch 599, 607 (Morton J), approved by Scott J in BBC v BSB [1992] Ch 141, 157. The word ‘hidden’ comes from the Explanatory Memorandum, Copyright Amendment Bill 1986 (Cth) [25], which stated that ‘[t]he dealing must, however, be genuinely for the purpose permitted in the sections, and not for some other “hidden” purpose’: quoted by Conti J in The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 280. There is no direct authority for the proposition that a hidden motive disqualifies reliance ‘particularly where the copyright infringer is a trade rival who uses the copyright subject material for its own benefit, particularly in a dissembling way’ (emphasis added). The proposition is loosely based on Lord Denning MR’s statement in Hubbard v Vosper [1972] EWCA Civ 9; [1972] 2 QB 84, 93 that ‘[i]t is not fair dealing for a rival in the trade to take copyright material and use it for his own benefit.’ Lord Atkin’s aphorism ‘[t]he path of criticism is a public way’ (Ambard v A-G for Trinidad and Tobago [1936] AC 322, 335) was quoted with approval by Henry LJ in Time Warner [1994] EMLR 1, 14 and referred to by Conti J in The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 277.

[43] This principle is based on statements of Lord Denning MR in Hubbard v Vosper [1972] EWCA Civ 9; [1972] 2 QB 84, 94 and Ungoed-Thomas J in Beloff v Pressdram Ltd [1973] 1 All ER 241, 262, both made in relation to literary works. Conti J’s extension of the principle to relate to subject matter other than original works is based on Pro Sieben [1999] 1 WLR 605 where Robert Walker LJ held, in relation to a television broadcast, that criticism ‘may also extend to ideas to be found in a work and its social or moral implications’: at 614. In the UK, ‘works’ are defined to include materials (such as television broadcasts) that in Australia are described as subject matter other than works: Copyright, Designs and Patents Act 1988 (UK) c 48, s 1(1)(b).

[44] This principle is taken from Mason J’s dictum in the High Court case of Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, 56, quoted by Conti J in The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 276.

[45] This principle is derived from statements of Hill J in Nine v ABC [1999] FCA 1864; (1999) 48 IPR 333, 340.

[46] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 295, 297–9.

[47] Ibid 292.

[48] Ibid.

[49] Ibid 291.

[50] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 438–9.

[51] Ibid 439.

[52] Nine did not appeal against Conti J’s findings as to fair dealing in relation to four of the excerpts and Ten did not put on a Notice of Contention as to Conti J’s findings in relation to five of the excerpts: ibid 440–1.

[53] Ibid 419–20 (Sundberg J), 442 (Hely J), 424 (Finkelstein J dissenting).

[54] Ibid 420 (Sundberg J), 442–3 (Hely J), 424 (Finkelstein J dissenting).

[55] Ibid 443 (Hely J; Sundberg and Finkelstein JJ agreeing).

[56] Ibid 444 (Hely J; Sundberg and Finkelstein JJ agreeing).

[57] Ibid 445 (Hely J; Sundberg and Finkelstein JJ agreeing). Nine did not appeal Conti J’s findings in relation to the ‘72nd Academy Awards’ excerpt: at 440.

[58] 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.

[59] See, eg, Jackie O’Brien, Sabiene Heindl and Dana Wintermantel, ‘“The Panel” Decision — News and Satire in Television Today’ (2002) 6 Telemedia 41, 43. See also Chris McLeod, Philippa Hore and Deborah Polites, ‘Turning on the Transmitter: Copyright in TV Broadcasts’, Clayton Utz: Technology and Intellectual Property Issues, September 2002, 5, 5–6 <http://www.claytonutz.com/downloads/techip_sept02.pdf> .

[60] Sarah Crichton, ‘Nine Has Last Laugh at the Expense of The Panel’, The Sydney Morning Herald (Sydney), 23 May 2002, 5. See also Jonathan Pearlman, ‘Row over the Sports Show You Show when You’re Not Showing Sport’, The Sydney Morning Herald (Sydney), 9 April 2002, 36.

[61] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 276–9; David Brennan, ‘Copyright and Parody in Australia: Some Thoughts on Suntrust Bank v Houghton Mifflin Company(2002) 13 Australian Intellectual Property Journal 161, 163.

[62] But see Brennan, above n 61, 163–4.

[63] Pro Sieben [1999] 1 WLR 605, 613 (Robert Walker LJ). See also Jeremy Phillips, ‘When Is a Fact?’ (2000) 11 Entertainment Law Review 116, 119.

[64] See Jonathan Griffiths, ‘Preserving Judicial Freedom of Movement — Interpreting Fair Dealing in Copyright Law’ [2000] Intellectual Property Quarterly 164, 176–81.

[65] [2001] Ch 685; aff’d [2002] Ch 149 (‘Ashdown’). Sir Andrew Morritt V-C’s decision at first instance was handed down before Conti J’s judgment in The Panel Case, and the Court of Appeal’s decision in Ashdown was handed down after Conti J’s judgment but before the Full Court’s judgment in The Panel Case.

[66] Although in Hubbard v Vosper [1972] EWCA Civ 9; [1972] 2 QB 84 some of the copyright works reproduced had only been published with a limited circulation (namely to those who took certain courses in Scientology): at 94; and in Time Warner [1994] EMLR 1, the copyright work (Stanley Kubrick’s film ‘A Clockwork Orange’) had been withdrawn from circulation in the UK approximately 20 years before the defendants’ dealing with the work: at 5.

[67] In BBC v BSB [1992] Ch 141, Scott J rejected the BBC’s argument that BSB’s showing of brief highlights of World Cup football matches after the BBC’s broadcast of the entire matches, but before the BBC’s own highlights programme, affected the BBC’s market in its broadcasts: at 155.

[68] See Pierre Leval, ‘Toward a Fair Use Standard’ (1990) 103 Harvard Law Review 1105, 1111; Campbell v Acuff Rose Music Inc, 510 US 569, 579 (1994) (Souter J). However, it is acknowledged that in Anglo-Australian law ‘transformative use’ does not determine whether a use is for a permitted statutory purpose or even if it is a ‘fair dealing’.

[69] [1972] EWCA Civ 9; [1972] 2 QB 84, 94. See also at 98 (Megaw LJ).

[70] Time Warner [1994] EMLR 1, 12–13 (Neill LJ).

[71] Ibid 11–12 (Neill LJ), 14–15 (Henry LJ).

[72] Ibid 13 (Neill LJ), 15–16 (Henry LJ).

[73] Ibid 16 (Henry LJ).

[74] Pro Sieben [1999] 1 WLR 605, 617 (Robert Walker LJ). The Court of Appeal’s approach has been rightly criticised for having stretched the language of the UK legislation to breaking point: see Robert Burrell, ‘Reining in Copyright Law: Is Fair Use the Answer?’ [2001] Intellectual Property Quarterly 361, 369 fn 43. Yet, on the facts of the case, it is arguable that the defendant was in fact criticising the extract of the plaintiff’s programme directly, rather than merely as an example of the genre of which it formed a part. The defendant’s comments which prefaced the showing of the excerpt clearly indicated that the scene in the excerpt was a misrepresentation, that its ‘ordinariness’ was contrived and the result of a publicist’s manipulation. Further, the defendant’s reference to the amount of money the plaintiff paid to make its programme was clearly intended as an implied criticism of the quality of the outcome, as evidenced by the banality of the excerpt chosen: at 609–10.

[75] Pro Sieben [1999] 1 WLR 605, 614 (Robert Walker LJ).

[76] Beloff v Pressdram Ltd [1973] 1 All ER 241, 263 (Ungoed-Thomas J): the reproduction of an unpublished work ‘is a much more substantial breach of copyright than publication of a published work’; Hyde Park [2001] Ch 143, 158, 159 (Aldous LJ): ‘it was difficult to imagine that it could be fair dealing to use a work that had not been published ... for the purposes of criticism, review or newspaper reporting ... [and] [t]o describe what “The Sun” did as fair dealing is to give honour to dishonour’; Ashdown v Telegraph Group Ltd [2001] Ch 685, 698–700 (Sir Andrew Morritt V-C); Ashdown [2002] Ch 149, 174–5 (Lord Phillips MR).

[77] This is not to suggest that this is always the case: see, eg, Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613, 625 (Talbot J).

[78] Hyde Park [2001] Ch 143, 158–9 (Aldous LJ); Ashdown v Telegraph Group Ltd [2001] Ch 685, 697–8 (Sir Andrew Morritt V-C); Ashdown [2002] Ch 149, 171 (Lord Phillips MR).

[79] [2001] Ch 143, 159 (Aldous LJ), 171 (Mance LJ). Cf at first instance, where Jacob J held that ‘it was close to necessary to publish the photographs to refute what Mr Al Fayed said’ and that for the newspaper merely to state that it had seen the photographs ‘would not have had anything like the same impact and force as actual publication of the stills’, which would demonstrate that ‘it had convincing evidence’ of its claims: Hyde Park Residence Ltd v Yelland [1999] RPC 655, 662.

[80] [2002] Ch 149, 174 (Lord Phillips MR). This was despite the fact that at first instance it was held that it may have been the disclosure of the information in the minute rather than its copying that had reduced its value: Ashdown v Telegraph Group Ltd [2001] Ch 685, 699 (Sir Andrew Morritt V-C).

[81] Ashdown [2002] Ch 149, 174 (Lord Phillips MR). See Jonathan Griffiths, ‘Copyright Law after Ashdown — Time to Deal Fairly with the Public’ [2002] Intellectual Property Quarterly 240, 251–2 for criticisms of this approach.

[82] [1992] Ch 141, 157–8.

[83] Hyde Park Residence Ltd v Yelland [1999] RPC 655, 660–3 (Jacob J).

[84] Hyde Park [2001] Ch 143, 157.

[85] Ibid.

[86] See Kevin Garnett, Jonathan Rayner James and Gillian Davies (eds), Copinger and Skone James on Copyright (14th ed, 1999) vol 1, [9-16].

[87] [1998] FSR 43, 52 (Laddie J): ‘At one stage [counsel for the plaintiff] seemed to suggest that criticism of the work or performance must be the dominant purpose. I do not think it is necessary to go that far’. This finding was not disturbed on appeal.

[88] BBC v BSB [1992] Ch 141, 158–9 (Scott J); Pro Sieben Media AG v Carlton UK Television Ltd [1998] FSR 43, 54 (Laddie J); Pro Sieben [1999] 1 WLR 605, 614, 619 (Robert Walker LJ); Newspaper Licensing Agency Ltd v Marks & Spencer plc [1999] RPC 536, 546 (Lightman J).

[89] Pro Sieben [1999] 1 WLR 605, 619 (Robert Walker LJ). Cf Jeremy Phillips, ‘Fair Stealing and the Teddy Bears’ Picnic’ (1999) 10 Entertainment Law Review 57, 58.

[90] Nine’s broadcasts had already taken place at the time of Ten’s dealings with them, and the information they conveyed was in the public domain. It was not seriously argued that Ten’s uses of Nine’s broadcasts were intended as substitutes for Nine’s original programmes: see The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 281.

[91] See below Part III(B).

[92] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 285.

[93] [1972] EWCA Civ 9; [1972] 2 QB 84, 94.

[94] See, eg, Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, 55–6 (Mason J); Wigginton v Brisbane TV Ltd (1992) 25 IPR 58, 63 (White J); Beloff v Pressdram Ltd [1973] 1 All ER 241, 263–4 (Ungoed-Thomas J); Hyde Park [2001] Ch 143, 157–8 (Aldous LJ).

[95] See, eg, Hyde Park [2001] Ch 143, 159 (Aldous LJ), 171 (Mance LJ).

[96] Ibid 158–9 (Aldous LJ), referring to British Oxygen Co Ltd v Liquid Air Ltd [1925] Ch 383, 393 (Romer J).

[97] See generally Lionel Bently and Brad Sherman, Intellectual Property Law (2001) 195–7.

[98] Copyright Act 1968 (Cth) ss 40(2), 103C(2).

[99] See Copyright Law Review Committee, Parliament of Australia, Report on the Simplification of the Copyright Act 1968: Part 1 — Exceptions to the Exclusive Rights of Copyright Owners (1998) [4.09]; Copyright Law Review Committee, Parliament of Australia, Copyright and Contract (2002) [3.39]; Ricketson and Creswell, above n 23, [11.35].

[100] [1975] HCA 26; (1975) 133 CLR 1, 12.

[101] [2001] Ch 143, 159.

[102] Hubbard v Vosper [1972] EWCA Civ 9; [1972] 2 QB 84, 94–5 (Lord Denning MR). See also Laddie et al, above n 23, [20.16], approved in Ashdown v Telegraph Group Ltd [2001] Ch 685, 698–9 (Sir Andrew Morritt V-C); Ashdown [2002] Ch 149, 173–4 (Lord Phillips MR).

[103] [1994] EMLR 1, 10. See also Hyde Park Residence Ltd v Yelland [1999] RPC 655, where the fact that the newspaper had paid for the photographs was held not to derogate from the pleaded fair dealing defence: at 663 (Jacob J).

[104] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 285.

[105] See below Part IV(D).

[106] [1999] 1 WLR 605, 614.

[107] De Garis [1990] FCA 352; (1990) 37 FCR 99, 107 cited in The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 275. See above nn 25–6 and accompanying text.

[108] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 276.

[109] Ibid 285.

[110] See Simon Stokes, Art and Copyright (2001) 155.

[111] Arthur Delbridge et al (eds), The Macquarie Dictionary (1st ed, 1981) 444.

[112] Ibid 1479.

[113] See, eg, John Simpson and Edmund Weiner (eds), Oxford English Dictionary (2nd ed, 1989) vol 4, 31 (‘criticism’ defined to include ‘fault-finding; censure’), vol 13, 830–1 (‘review’ defined to include ‘a general survey ... of some subject or thing’ and ‘a general account or criticism of a literary work’).

[114] For example, neither Conti J nor the Full Court referred to the approach taken in Schott Musik International GMBH & Co v Colossal Records of Australia Pty Ltd (1996) 71 FCR 37, 43 (Tamberlin J); aff’d (1997) 75 FCR 321, 332 (Hill J), where the judges used a number of dictionaries to define the word ‘debase’, used in (the now repealed) s 55(2) of the Act. The Full Court did not refer to Copyright Licensing Ltd v University of Auckland [2002] 3 NZLR 76 (High Court), where Salmon J used the New Shorter Oxford English Dictionary to define ‘criticism’: at 83.

[115] De Garis [1990] FCA 352; (1990) 37 FCR 99, 107.

[116] See ‘Freedom of Speech at Risk’, above n 58.

[117] See above n 26.

[118] Mitchell Dean, Critical and Effective Histories: Foucault’s Methods and Historical Sociology (1994) 119. According to Foucault, ‘[p]ractising criticism is a matter of making facile gestures difficult’: see Michel Foucault, ‘Practising Criticism’ in Lawrence Kritzman (ed), Politics, Philosophy, Culture: Interviews and Other Writings, 1977–1984 (1988) 152, 155.

[119] See ‘Freedom of Speech at Risk’, above n 58.

[120] See Brad Sherman, ‘Appropriating the Postmodern: Copyright and the Challenge of the New’ in Daniel McClean and Karsten Schubert (eds), Dear Images: Art, Copyright and Culture (2002) 405, who argues that while copyright law should not necessarily modify its structures according to contemporary (and possibly fleeting) movements, the law has sufficient flexibility to accommodate a wide range of artistic and cultural practices.

[121] In the context of literary works, see University of London Press v University Tutorial Press [1916] 2 Ch 601, where Peterson J held that the term ‘literary work’ covers ‘work which is expressed in print or writing, irrespective of the question whether the quality or style is high’: at 608, meaning that works such as a grid of numbers for a betting game (Express Newspapers plc v Liverpool Daily Post & Echo plc [1985] 1 WLR 1089) and blank accounting forms (Kalamazoo (Australia) Pty Ltd v Compact Business Systems Pty Ltd (1985) 5 IPR 213) have been protected as ‘literary works’. Following amendments to the Act in 1984, a table of data stored in a computer, even though invisible, will constitute a literary work: see Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49; (1999) 202 CLR 1, 41–2 (Gleeson CJ, McHugh, Gummow and Hayne JJ). The situation is more complex in respect of artistic works. With the exception of ‘works of artistic craftsmanship’, there is no requirement of artistic quality: Copyright Act 1968 (Cth) s 10. Thus the stylised letters ‘R’ and ‘B’ have been protected as ‘drawings’ (Roland Corporation v Lorenzo & Sons Pty Ltd [1991] FCA 617; (1991) 33 FCR 111), a plastic frisbee has been held to be an ‘engraving’ (Wham-O MFG Co v Lincoln Industries [1984] 1 NZLR 641) and a half-court tennis court and a swimming pool have been held to be ‘buildings’ (Half Court Tennis Pty Ltd v Seymour (1980) 53 FLR 240; Darwin Fibreglass Pty Ltd v Kruhse Enterprises Pty Ltd [1998] NTSC 44; (1998) 41 IPR 649). Even in respect of ‘works of artistic craftsmanship’, where some element of artistic quality is required, courts have not set this test at a high threshold and have been prepared to accept works with utilitarian features: see Coogi Australia Pty Ltd v Hysport International Pty Ltd [1998] FCA 10; (1998) 86 FCR 154, 164 (Drummond J). However, courts have at times narrowly interpreted ‘paintings’ (Merchandising Corporation of America Inc v Harpbond Ltd [1983] FSR 32) and ‘sculptures’ (Metix (UK) Ltd v G H Maughan (Plastics) Ltd [1997] FSR 718; Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444).

[122] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 295 (‘Days of Our Lives’ (Marlena standing)), 298 (‘Sunday’ (Drugs at Olympics)).

[123] Ibid.

[124] Ibid 293 (‘A Current Affair’ (Masquerade of introduction agency)).

[125] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 444 (‘Sunday’ (Drugs at Olympics)), 445 (‘The Today Show’ (Prasad interview)) (Hely J).

[126] Ibid 444 (‘Sunday’ (Drugs at Olympics)) (Hely J).

[127] Ibid 424.

[128] In Johnstone v Bernard Jones Publications Ltd [1938] 1 Ch 599, Morton J suggested, in obiter dicta, ‘that any oblique motive ... would render the publication of the letter in question an unfair dealing’: at 607. Similarly, in Hubbard v Vosper [1972] 2 QB 74, Lord Denning MR stated that ‘[i]t is not fair dealing for a rival in the trade to take copyright material and use it for his own benefit’: at 83. Conti J however misconstrued both cases in suggesting in the fifth Principle that improper motives or whether the defendant is a trade rival of the plaintiff ‘may disqualify reliance upon criticism and review’: The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 285.

[129] See above Part II(C).

[130] See above Part II(B).

[131] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 444 (emphasis added).

[132] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 276.

[133] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 434.

[134] [1972] EWCA Civ 9; [1972] 2 QB 84.

[135] His Lordship gave the example of an epitaph on a tombstone ‘consisting of a dozen or of 20 words’: ibid 98. It is perhaps doubtful that such a short piece could even constitute a literary work, given Mummery J’s finding in Noah v Shuba [1991] FSR 14 that two sentences totalling 17 words were insufficiently substantial to constitute a literary work: at 33.

[136] Zamacois v Douville [1943] 2 DLR 257, 285 (Angers J).

[137] See also Burrell, ‘Reining in Copyright Law’, above n 74, 365–73 as to the history of the relationship between the concepts of substantiality and the fair dealing exceptions.

[138] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 295.

[139] Ibid 293.

[140] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 423. Cf The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 239.

[141] See, eg, Laddie et al, above n 23, [20.16].

[142] Little, above n 12; McLeod, Hore and Polites, above n 59, 6.

[143] In Sillitoe v McGraw-Hill Book Company (UK) Ltd [1983] FSR 545, Judge Davies took into account the English Publishers’ Association and Society of Authors’ recommended standards as to what constituted a fair dealing with a literary work: at 559. See also BBC v BSB [1992] Ch 141, 152–4 (Scott J).

[144] See Little, above n 12.

[145] As a matter of general principle, see The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 285; The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 419 (Sundberg J), 422–3 (Finkelstein J).

[146] See The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 419 (Sundberg J), 422 (Finkelstein J). Finkelstein J commented that ‘it needs to be acknowledged that we are in the realm of decision-making where there is room for legitimate differences of opinion as to the correct answer. In some instances it might be impossible to say whether one view is demonstrably right and another view is demonstrably wrong’: at 422.

[147] See The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 291 (‘The Today Show’ (Boris Yeltsin)), 295 (‘Days of Our Lives’ (Marlena standing)), 298 (‘72nd Academy Awards’ (Artificial fog)).

[148] Ibid 298.

[149] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 419–20.

[150] Ibid 442, 444.

[151] See above Part IV(A)(1).

[152] Pro Sieben [1999] 1 WLR 605, 613–14 (Robert Walker LJ); Hyde Park [2001] Ch 143, 154–5, 158–9 (Aldous LJ).

[153] Pro Sieben [1999] 1 WLR 605, 614 (Robert Walker LJ).

[154] See Robert Burrell, ‘The Future of the Copyright Exceptions’ in Daniel McClean and Karsten Schubert (eds), Dear Images: Art, Copyright and Culture (2002) 455, 460.

[155] See also Melissa de Zwart, ‘Seriously Entertaining: The Panel and the Future of Fair Dealing’ (2003) 8 Media and Arts Law Review 1, 12.

[156] Particularly since legal aid is unavailable for copyright actions: see Arts Law Centre of Australia, ‘Inquiry into the Enforcement of Copyright in Australia’ (1999) Art+Law <http://artslaw.com.au/reference/enfcopy993/> .

[157] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 298 (‘72nd Academy Awards’ (Artificial fog)), 299 (‘Sale of the New Century’ (Lighting switched off)), 300 (‘Newsbreak’ (Technical glitch)).

[158] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 445 (Hely J) (‘The Today Show’ (Prasad interview)).

[159] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 295; The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 443 (Hely J) (‘Days of Our Lives’ (Marlena standing)).

[160] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 292; The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 420 (Sundberg J), 442 (Hely J) (‘Midday’ (Prime Minister singing)).

[161] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 295 (‘Crocodile Hunter’ (Scuba diving)).

[162] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 444 (‘Simply the Best’ (Ray Martin)).

[163] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 293 (‘A Current Affair’ (Masquerade of introduction agency)).

[164] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 425 (Finkelstein J) (‘Simply the Best’ (Ray Martin)).

[165] Ibid 444 (Hely J) (‘Simply the Best’ (Ray Martin)).

[166] Ibid 439 (Hely J). See also The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 293 (‘A Current Affair’ (Masquerade of introduction agency)), 299 (‘Sale of the New Century’ (Lighting switched off)), 299 (‘The Today Show’ (Prasad interview)), 300 (‘Newsbreak’ (Technical glitch)), 301 (‘Who Wants to Be a Millionaire’ (Ingredients of Xmas pudding)); The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 445 (Hely J) (‘Newsbreak’ (Technical glitch)).

[167] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 298.

[168] Ibid 295.

[169] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 443 (Hely J).

[170] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 293 (‘Wide World of Sports’ (Grand Final celebrations)), 294 (‘Pick Your Face’ (Kerri-Anne Kennerley)), 295 (‘Crocodile Hunter’ (Scuba diving)), 301 (‘The Today Show’ (Child yawning)); The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 443 (Hely J) (‘A Current Affair’ (Masquerade of introduction agency)).

[171] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 292.

[172] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 420 (Sundberg J), 442 (Hely J).

[173] Ibid 445.

[174] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 293 (‘Wide World of Sports’ (Grand Final celebrations)). See also at 296 (‘Simply the Best’ (Ray Martin)).

[175] Ibid 293 (‘A Current Affair’ (Masquerade of introduction agency)).

[176] Garnett, Rayner James and Davies, above n 86, vol 1, [9-18] fn 92.

[177] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 250.

[178] Ibid 295 (‘Days of Our Lives’ (Marlena standing)), 298–9 (‘72nd Academy Awards’ (Artificial fog)); The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 420 (Sundberg J) (‘Simply the Best’ (Ray Martin)), (‘Midday’ (Prime Minister singing)).

[179] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 293 (‘Wide World of Sports’ (Grand Final celebrations)), 294 (‘Pick Your Face’ (Kerri-Anne Kennerley)), 295 (‘Days of Our Lives’ (Marlena standing)), 298–9 (‘72nd Academy Awards’ (Artificial fog)), 301 (‘The Today Show’ (Child yawning)). Each of these findings was either not appealed by Nine, not part of Ten’s Notice of Contention or was upheld on appeal.

[180] Pro Sieben [1999] 1 WLR 605, 613–14, 616 (Robert Walker LJ). See also above nn 152–3 and accompanying text.

[181] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 239; The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 423 (Finkelstein J).

[182] Regular panellist Tom Gleisner, quoted in Peter Wilmoth, ‘Once Bitten ...’, Agenda, The Sunday Age (Melbourne), 19 August 2001, 1, 4.

[183] See also John Docker, Postmodernism and Popular Culture: A Cultural History (1994) 275, who describes the idea of a passive spectator of cultural production as a ‘modernist myth’.

[184] This is at the very least true for those dealings considered in Part II(A) above.

[185] See Ian Craven, ‘Introduction: Australian Culture as Popular Culture’ in Ian Craven (ed), Australian Popular Culture (1994) 12.

[186] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 442.

[187] Ibid 420.

[188] For example, the comments: ‘Well I reckon if he didn’t sing it, she would have put her hand up his a...’ and ‘Kerri-Anne will not take no for an answer’: cited in The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 291.

[189] For example, the comment: ‘She is essentially a Labor voter [be]cause she got [conservative politician] Costello to do the macarena ... and made him look like an idiot and now she’s done it with John Howard’: cited in The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 291.

[190] For example, the comments:

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

‘She resurrected [the programme].’

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

‘Five days a week.’

‘She is an ideal Midday host’.

Cited in The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 291.

[191] Ibid 299.

[192] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 445.

[193] Nine proclaims that ‘The Today Show’ is ‘Australias [sic] number one live national breakfast programme’: <http://www.winnet.com.au/winnet/shows.asp?Page=3> .

[194] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 285; The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 444 (Hely J).

[195] See Pro Sieben [1999] 1 WLR 606, where Robert Walker LJ noted that the defendant’s ‘relatively mild’ criticism was a consequence of the ‘bland’ nature of the copyright material being criticised: at 617.

[196] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 293; The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 419–20 (Sundberg J).

[197] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 285, 291; The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 442 (Hely J).

[198] [1999] FCA 1864; (1999) 48 IPR 333, 340.

[199] Catharine Lumby, ‘The Future of Journalism’ in Stuart Cunningham and Graeme Turner (eds), The Media and Communications in Australia (2002) 320, 325. See also David Altheide and Robert Snow, Media Worlds in the Postjournalism Era (1991) 46–7.

[200] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 423 (Finkelstein J).

[201] See also Copyright Licensing Ltd v University of Auckland [2002] 3 NZLR 76, where Salmon J held that the reporting of current events would only occur in ‘some section of the news media’: at 84.

[202] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 297.

[203] Ibid.

[204] Ibid 291.

[205] Ibid.

[206] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 419–20 (Sundberg J), 442 (Hely J).

[207] Ibid 420. See also at 442–3 (Hely J).

[208] [1999] FCA 1864; (1999) 48 IPR 333, 340.

[209] See Pro Sieben Media AG v Carlton UK Television Ltd [1998] FSR 43, 52 (Laddie J).

[210] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 424.

[211] Ibid.

[212] Ibid 423.

[213] Ibid 423–4. See also The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 290.

[214] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 290–1; The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 424 (Finkelstein J).

[215] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 424.

[216] The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 292.

[217] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 442–3.

[218] See, eg, Amanda Meade, ‘PM Sings, but Not on a Date’, The Australian (Sydney), 27 August 1998, 2; ‘The Don: Both Hero and Metaphor’, The Australian (Sydney), 27 August 1998, 10; Mike Seccombe, ‘Kookaburra’, The Sydney Morning Herald (Sydney), 28 August 1998, 34.

[219] The Panel Appeal [2002] FCAFC 146; (2002) 118 FCR 417, 424.

[220] Dugald Jellie, ‘The 10 Second Grab for Power’, The Guide, The Sydney Morning Herald (Sydney), 14 September 1998, 4.

[221] Ibid; Seccombe, above n 218.

[222] Meade, above n 218; ‘The Don: Both Hero and Metaphor’, above n 218.

[223] Meade, above n 218; Seccombe, above n 218.

[224] Wendy Frew, ‘Who’s Driving our History?’, Spectrum, The Sydney Morning Herald (Sydney), 2 March 2002, 6; Brett Hutchins, Don Bradman: Challenging the Myth (2002).

[225] For example, one panellist’s sarcastic comment that Kennerley’s actions would ‘get him back’ on the show, and another’s comment that the Prime Minister looked like a ventriloquist’s dummy when he sang: cited in The Panel Trial [2001] FCA 108; (2001) 108 FCR 235, 291.

[226] [1972] EWCA Civ 9; [1972] 2 QB 84, 94.

[227] Hely J dissented.
[228] Finkelstein J dissented.
[229] Finkelstein J dissented.
[230] Finkelstein J dissented.

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