Between August 1999 and June 2000, Network Ten Pty Ltd (‘Ten’) re-broadcast
on its weekly program The Panel excerpts from 20 programs originally broadcast
by rival television network TCN Channel Nine Pty Ltd (‘Nine’). Prior to each
episode of The Panel, Ten made videotapes of each of Nine’s broadcast programs,
and subsequently made tapes of those first videotapes in order to isolate the
excerpts to be re-broadcast. The excerpts were of between eight and 42 seconds in
duration.2 Ten re-broadcast many of these excerpts to make satirical reference to
incongruous, sometimes farcical, moments within the excerpts, often to draw
attention to the disparity between the ethos of the original program and its actual
content. On some occasions the excerpts were shown for their topical value as a
stimulus to both serious and irreverent discussion.
Nine brought proceedings in the Federal Court against Ten, alleging that Ten
had infringed Nine’s copyright in its television broadcasts pursuant to s101 of the
Copyright Act. At first instance, Conti J found that Ten had neither copied nor re-