'A real pea souper': the Panel Case and the development of the fair dealing defences to copyright infringement in Australia.

• Jurisdiction: Australia
• Author: Handler, Michael
• Date: 01 August 2003

[The majority of commentary on the Federal Court decisions in The Panel Case has focused on the findings as to infringement of copyright in television broadcasts. By comparison, the judges' consideration of the fair dealing defences to copyright infringement has been somewhat neglected. This article suggests that the Federal Court passed up a rare and valuable opportunity to clarify the operation of the fair dealing defences in Australian copyright law. It failed to articulate sound principles, which in turn led to anomalous and problematic outcomes in The Panel Case. The article provides a close analysis of the treatment of the fair dealing defences in The Panel Case as well as suggesting a basis for the future principled development of the fair dealing defences in Australian law.]

CONTENTS

I Introduction II The Panel Case and the Articulation of the Principles of Fair Dealing A Background to the Litigation B Findings on Copyright Infringement C Findings on Fair Dealing 1 Conti J 2 The Full Court D Reaction and Implications III Critique of The Panel Case: Unclear Principles A The Undifferentiated Reading of the Case Law on Fair Dealing 1 Conti J's Methodology 2 An Engagement with the UK Case Law 3 The Problems with Conti J's Methodology B Statements Taken Out of Context and Improperly Elevated to the Level of Principle C The Problems with Defining 'Criticism' and 'Review' 1 Limitations of the Definitions of 'Criticism' and 'Review' in De Garis 2 The Improper Focus on Definitions at the Expense of Interpretation IV Critique of The Panel Case: Ad Hoe Decision Making A The Failure Properly to Consider the Issue of Fairness 1 'Fairness' Overlooked 2 Failure to Consider the Relationship between 'Substantial Part' and Fair Dealing 3 Commercial Rivalry Given Undue Importance B 'Matter of Impression' Misapplied as the Central Inquiry C Problems with the Interpretation of 'Criticism' and 'Review' 1 Criticism, Satire, Humour or Entertainment? 2 The Unduly Narrow Understanding of What Constitutes 'Criticism' D Problems with the Treatment of News and Entertainment 1 The False Dichotomy between News and Entertainment 2 The Importance of Context in News Reporting V Re-Reading of the Fair Dealing Defences A Fairness B Purpose C Criticism and Review D News Reporting VI Conclusion VII Appendix: Summary of The Panel Case I INTRODUCTION

Copyright cases in which fair dealing defences are raised are rare in Australia. The most recent Australian litigation in which such defences were raised was The Panel Case in the Federal Court, both at first instance (1) and on appeal to the Full Court. (2) TCN Channel Nine Pry Ltd ('Nine') sued rival television station Network Ten Pty Ltd ('Ten') for copyright infringement arising from the use of a number of excerpts from Nine's programmes on Ten's programme 'The Panel'. Part of Ten's defence was that its use of Nine's programmes constituted fair dealing for the purposes of criticism or review and/or the reporting of news under ss 103A and 103B(1) of the Copyright Act 1968 (Cth) ('the Act'). (3) At first instance and on appeal, the outcomes for Ten in relation to its fair dealing defences were mixed. Given the infrequency with which fair dealing defences are raised in Australia, The Panel Case provided an important opportunity for the Federal Court to contribute to the principled development of the jurisprudence in this area. Unfortunately, the judges in The Panel Case did not adequately avail themselves of this opportunity.

At the most general level, we suggest that there are two overarching problems with The Panel Case. First, neither Conti J at first instance nor the Full Court on appeal clearly articulated the principles governing the defences of fair dealing for the purposes of criticism or review, and of news reporting. More specifically, they did not adequately consider: the proper standard by which the fairness of the dealing ought to be assessed; how crucial terms, such as 'criticism', 'review' and 'reporting of news', should be defined and applied; or how the substantial body of UK case law on fair dealing should be interpreted. Secondly, and as a consequence of the first problem, the judges applied the fair dealing defences in an ad hoc manner based primarily on personal 'impression', without clearly or consistently explaining, by reference to external principles, the bases for their findings. The judges largely overlooked the question of whether Ten's dealings were 'fair', and the Full Court in particular failed to grasp the relationship between the assessment of the fairness of a dealing and the 'substantial part' test for copyright infringement. Instead, the judges focused on whether Ten's dealings were for the purposes of 'criticism', 'review' and 'reporting of news', and in doing so implicitly encoded unduly restrictive notions of these statutory purposes in circumstances where a greater sensitivity to the practices of criticism and news reporting was needed. As a result of these two major problems, the Federal Court has both obfuscated the principles of fair dealing and reached outcomes that are neither clearly reasoned nor at times easy to reconcile with one another.

This article aims to provide a critique of the reasoning in The Panel Case and to suggest alternative ways that the fair dealing defences could be developed and applied. Part II of this article focuses on the judgments of Conti J and of the Full Court in The Panel Case and, in particular, on the way in which the judges dealt with the legal principles governing the fair dealing defences. Part III provides a critique of the judges' articulation of legal principle in The Panel Case. Part IV focuses on the problematic application of principle in The Panel Case with particular reference to six excerpts of Nine's programmes rebroadcast by Ten. Cumulatively, these criticisms demonstrate that the decisions in The Panel Case have left Australian copyright law in an unsatisfactory state. Part V offers a fresh examination of the fair dealing defences in light of this critique, indicating the need for a rigorous and principled reconsideration of the operation and effect of fair dealing defences under the Act.

II THE PANEL CASE AND THE ARTICULATION OF THE PRINCIPLES OF FAIR DEALING

A Background to the Litigation

'The Panel' is a weekly television programme that has been broadcast throughout Australia since 1998. Each hour-long episode features a regular team of three to five panellists, plus several invited guest panellists, who engage in largely unscripted discussion about items of topical interest and popular culture in a generally light-hearted manner. In doing so, the panellists frequently make reference to other television programmes, excerpts of which are sometimes shown. Copies of these other programmes are made by Ten before each episode of 'The Panel' and Ten rebroadcasts excerpts from these copied programmes during each episode as prompted by the panellists. The panellists often use the excerpts to make reference to incongruous, sometimes unintentionally humorous, moments within rival broadcasters' television programmes in order to poke fun at these programmes. As befits a live television show, on some occasions the ridicule is made more explicit than on others.

Between August 1999 and June 2000, Ten rebroadcast on 'The Panel' excerpts from 20 programmes originally broadcast by Nine. (4) The excerpts were of between eight and 42 seconds in duration. (5) Some examples of these excerpts, and the way in which the panellists dealt with them, are as follows: An excerpt from Nine's morning news programme 'The Today Show' showed former Russian President Boris Yeltsin shaking hands with three former Russian Prime Ministers. The panellists, in the context of discussing the then pending Australian republic referendum, made humorous and derisive comments about the political performance of Yeltsin and other world leaders; (6)

* An excerpt from Nine's variety programme 'Midday' showed the Prime Minister, John Howard, singing 'Happy Birthday' to retired Australian cricketer, Sir Donald Bradman, at the request of the programme's host, Kerri-Anne Kennerley. The panellists made lengthy comments relating to the appearance of the Prime Minister in the excerpt and Kennerley's performance as the host of 'Midday'; (7)

* An excerpt from Nine's long-running US soap opera 'Days of Our Lives' showed the character Marlena Evans standing on a balcony in a state of demonic possession. The panellists commented on the hackneyed plot devices being employed to prolong the life of Nine's programme; (8)

* An excerpt from Nine's flagship public affairs programme 'Sunday' showed a 'sports performance consultant' making allegations of drug-taking among elite athletes. The panellists generally agreed that the allegations were grossly exaggerated and inappropriate in the context of the then pending Olympic Games in Sydney; (9)

* An excerpt from the '72nd Academy Awards' ceremony, which had been broadcast by Nine, showed American soul singer Isaac Hayes becoming enveloped in 'a real pea souper' of an artificial fog during his live performance at the ceremony, apparently due to overuse of artificial fog machines. The panellists made amusing comments about this over the footage of the excerpt; (10)

* A series of temporally separated excerpts from 'The Today Show', edited together by Ten, showed an interviewer, located in Nine's studios, engaged in a serious interview of Mr Prasad, the manager of a Sydney hostel, who was located at the hostel. During the excerpts, hostel occupants intruded into the frame behind Prasad, and the panellists laughed at this. (11)

Following some inflammatory comments about Ten's practices by the then director of news and current affairs at Nine, (12) Nine brought proceedings against Ten, alleging that Ten had infringed Nine's copyright in its television broadcasts. (13) Ten argued that it had not infringed Nine's...