Australian Television Broadcasts as Copyright Property
David J. Brennan
Melbourne Law School
U of Melbourne Legal Studies Research Paper No. 275
NEW DIRECTIONS IN COPYRIGHT LAW, F. Macmillan and K. Bowrey, eds., Edward Elgar Publishing, 2006
This is a chapter about Australian broadcasts as copyright property - in particular television broadcasts. It commences with an idea, an observation and the nub of The Panel Case.
The idea involves reworking the subject matter/rights dichotomy well-known in relation to copyright. In its place we might think not of a dichotomy but of two inter-related aspects of copyright property; scope and exclusion in which neither can be considered in isolation. In certain respects this may be a more realistic way to consider copyright as a delimited property, which treats the concepts of scope and exclusion as integrated. This can be done by reference to the famous Australian case of Universal City Studios v Zeccola. If that case is considered as involving certain subject matter, a screenplay and a novel, that were non-literally reproduced in an Italian film, it may be that the operation of the law is being understood with false precision. The courts' intervention in Zeccola, to treat as an infringement a film with a plot and characters similar to the screenplay and novel, can be usefully understood as a bringing together notions of scope and exclusion in a unitary concept of protection. How can the scope of the subject-matter protected in Zeccola be understood without reference to the nature of the right to exclude that was there recognised? Exclusion gives functional meaning to copyright scope. It is only when the two are considered jointly that copyright can be meaningfully talked about in property terms.
The second thing is the observation which belongs to Ronald Coase. He observed that the delimitation of legal rights was an essential prelude to market transactions, but that a waste of resources may occur when the criteria used by courts to delimit rights result in resources being employed solely to establish a claim. For a property rights system to be efficient in its allocative role, a primary requirement is that those rights can be clearly established and ascertained.
Finally, two bottom lines of the High Court majority's reasoning in The Panel might be distilled. The first was that the majority made clear that what is worth copying is not necessarily worth protecting. To use the refashioned nomenclature, it suggested that the concept of exclusion should be relaxed. The second is that a television broadcast as copyright subject matter can not be defined with precision but it will include something 'put out to the public, the object of the activity of broadcasting, as discrete periods of broadcasting identified and promoted by a title'. Again, to use the suggested nomenclature, the holding was one in which scope was pragmatically defined. Translating these two bottom lines together into the unitary concept outlined above, the High Court majority has crafted television broadcast signal property rights in terms of substantive takings of television programs. The High Court majority did not itself apply its concept of the property, remitting the case back to the Full Federal Court to do so.
This chapter will argue that the interpretative outcome arrived at by the High Court was unsound in history and logic. From this some observations will be made about the existence of broadcast signal copyright, and why the US position may offer a more sensible model than the law as it currently stands in Australia.
Number of Pages in PDF File: 10
Keywords: television, copyright, Australia
JEL Classification: K11Accepted Paper Series
Date posted: November 6, 2007
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