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Ross, Jordan --- "The Panel Case and the Desirability of Harm as a Requirement of Copyright Liability" [2002] DeakinLawRw 9; (2002) 7(1) Deakin Law Review 201


The Panel Case and the Desirability of Harm as a Requirement of Copyright Liability

Jordon Ross[*]

I Introduction

From as early as 1872 Courts have been dealing with the question of whether an act that does not harm the copyright owner can nevertheless be said to have infringed that person’s copyright.[1] Some courts have held that the copyright plaintiff does not need to show that they have been harmed in order to succeed.[2] Others have held that it is a relevant consideration in deciding infringement.[3] However, it was not until recently that a court has held that harm is a necessary requirement in order to find infringement.[4]

There is a similar diversity of opinion in the academic world. Both Copinger[5] and Ricketson[6] indicate that in certain circumstances the likelihood of commercial harm to copyright owners is a relevant, though not necessary, factor to establish copyright infringement. Goldstein[7] and others[8] state that showing harm is simply not required. Whilst at the other end of the spectrum, Y’Barbo argues that in reality courts find copyright infringement only when the plaintiff suffers some form of commercial harm.[9]

With regard to the decision in TCN Channel Nine v Network Ten[10] (“The Panel Case”) and various academic opinions, this essay discusses the desirability of quantifiable harm as a requirement of copyright liability. The requirement is analysed in light of the general economic policies that underpin copyright law, other legislative provisions in the Copyright Act and the proprietary nature of copyright. It is concluded that the requirement not only undermines the economic policies on which copyright law is based but is inconsistent with the wider statutory focus of the Copyright Act and copyright’s proprietary nature.

II The Current State of the Law: The Decision in the Panel Case

The Panel Case concerned the alleged infringement of television broadcast copyright relating to twenty Channel Nine television programs. The case arose from the activities of the popular Network Ten show ‘The Panel.’ The show is basically an informal ‘chat show’ in which members of ‘The Panel’ discuss, and sometimes parody or satirise, issues ranging from current affairs to sport and movies. In the course of doing so, they rebroadcast portions of these Nine programs. Accordingly, Nine sued Ten for re-broadcasting their earlier broadcasts under s 87(c) of the Copyright Act.[11]

Broadly speaking there were two issues in the case: (1) had Ten re-broadcast substantial parts of the earlier Nine broadcasts and therefore infringed Nine’s television broadcast copyright; (2) if so, could this be described as a fair dealing under either s 103A or s 103B of the Copyright Act. The case was decided on the former issue, so much of the decision of the court was by way of obiter.[12] It is the former issue about which this essay is concerned.

In deciding the issue of substantial part Conti J analyses previous authority, and after stating that it all relates to what constitutes a substantial part of Part III works,[13] concludes that he is not bound by it.[14] Relying heavily on Nationwide News[15], he formulates his own test of substantiality for part IV subject matter.[16] According to Conti J, there are three factors to be considered in the test for substantiality for Part IV subject matter: (1) the quantity of that which is taken; (2) the quality of that which is taken; and (3) the object or purposes of the taking.[17] At all stages harm to the copyright owner is stated to be a relevant consideration.[18]

The approach seems to be to first consider issues of quality and quantity and then to consider the object or purpose of the taking.[19] These factors are not ‘mutually exclusive,’[20] so all need to be considered and no single factor is decisive.[21]

Conti J’s application of his test to the facts bears out his approach. He notes that the quantity taken from the Nine broadcasts was small, Ten having taken footage lasting between 8 seconds and 42 seconds from programs that went for 21 minutes to almost 5 hours.[22] Likewise, there was no commercial harm (or what I term quantifiable harm) to Nine[23] and the object or purpose of ‘The Panel,’ being to satirise or parody the Nine broadcast program, was different to Nine’s purpose in making its broadcast.[24] Consequently, it was found that Ten had not taken a substantial part of the Nine broadcasts and there was no infringement.[25]

Notwithstanding the apparent attention Conti J pays to a multi-factored approach, quantifiable harm is stressed as all stages in his test on substantiality so that the effect of the decision is to make it a necessary requirement. For example, it is stated that:

Ascertainment of what constitutes a substantial part will require consideration of both the quantity and quality of what has been taken...one simple and practical test is to ask...has harm been inflicted on the television broadcaster’s commercial interest in the whole of the program?[26]

Moreover, in considering the object or purpose of the taking, Conti J states that an infringing use will be one where the object or purpose of the alleged infringer and the copyright owner are the same. This is justified because

If the primary purpose of an alleged infringing television broadcaster in taking visual images from its competitor for presentation in a program is for a different use than that to which its competitor has put the same, it may be concluded that though the alleged infringer has thereby gained a commercial advantage, it cannot in any realistic sense be postulated that it has done so as a competitor of the copyright holder, or has in any event occasioned harm to the copyright holder's commercial interest in the whole of its program, or has been otherwise guilty of piracy.[27]

Additionally, Conti seems to equate infringement with piracy and he states on several occasions that quantifiable harm to the copyright owner defines piracy.[28]

In summary, the decision in the Panel Case asserts that a substantial part of Part IV subject matter is not taken by a use of that subject matter unless that use occasions the copyright owner quantifiable harm. As an infringing use must be, among other things, of a substantial part of a work or other subject matter, the effect of the decision is to make some form of quantifiable harm a necessary requirement of copyright infringement.

III The Economic Foundations of Copyright Law

It is reasonably clear that the protection afforded by copyright law is justified by primarily economic criterion.[29] Indeed, even those opposed to copyright protection use primarily economic arguments to attack it. Moreover, many of the arguments in favour of harm as a necessary component of copyright liability are economic in nature.

Whilst a detailed analysis of the economic and efficiency justifications of copyright law is beyond the scope of this essay,[30] this section aims to show that the arguments advanced in favour of harm as a requirement of copyright liability are unsound and that by undermining the market that copyright law seeks to create, making harm a necessary element of copyright liability subverts the fundamental objectives of copyright law.

A What Are These Foundations?

It is generally accepted that copyright law seeks to strike a balance between various competing interests.[31] On the one hand copyright protection seeks to provide incentives for authors, musicians and the like to engage in creative endeavour.[32] This is achieved by granting the copyright owner a restricted monopoly over use of their works in order to recoup the costs of creation[33] and to give them a fair return for their effort.[34] On the other hand copyright law also seeks to promote public access to copyright works[35] and to allow authors to draw on the stock of previous works in creating their own.[36]

As Siebrasse notes, the intuition is straightforward.[37] With insufficient copyright protection ‘authors will be undercut by pirates who do not have to bear the costs of creation. Anticipating this authors will not enter the market in the first place, and too few works will be created.’[38] But too much copyright protection raises the cost of copyright works, [39] with the result that ‘authors will not be able to afford to use the prior works on which they build in creating new works. Again, too few works will be created.’[40] Moreover, the public will not be able to afford the work, with the result that demand, and hence return to the author, decreases. ‘Somewhere between these two extremes of protection lies a happy medium.’[41]

Central to the achievement of these goals is that copyright law must facilitate an efficient market for the exchange of copyright works:[42] the market allows the copyright owner to recognise financial return for their works and the public to access and purchase these works.

B The Definition of Harm

‘According to the basic tenets of economic analysis of the law, the parties must know the legal rule in order to negotiate efficient outcomes.’[43] Law and economics scholars also predict ‘ex ante bargaining is possible only if property rights are well defined in the sense that the creator of the work is able to determine before she acts whether she will be found to have infringed a prior creator's rights.’[44] Thus, unless a potential defendant knows whether their intended use of a copyright work will be an infringing use, the defendant is less likely to seek a licence to use that work. Although some would seek a licence in order to be certain that they do not infringe, many others would not. The point is that the purchase of a licence is less likely in a world in which the rights of the parties are uncertain. This undermines the market for copyright works.

The impact of this analysis is that in a world where harm to the copyright owner is determinative of liability, the definition of harm must be unambiguous and well defined. However, this is not the case.[45]

A person is harmed when they are worse off than they would have been in comparison to some other state of affairs. This has prompted Gordon to say ‘harm is a relative concept that depends for its content on [the] specification of a baseline.’[46] Consequently, there are as many definitions of harm as there are baselines from which to measure it. Conventional wisdom has it that there are two such baselines: (1) the state of affairs that would have existed if the defendant had acted lawfully, (2) the state of affairs that would have existed in the absence of the defendant.[47]

Under the first baseline, a defendant would have purchased a licence from the copyright owner and so if he/she has not, the plaintiff has been harmed. With this definition almost all unauthorized uses of the copyright owner’s work will be seen to be harmful, the effect of which is that it is only necessary to show some that a use is unauthorized, rather than some form of quantifiable harm. The weight of academic opinion is in support of this approach to defining harm,[48] though in cases that speak of harm, including The Panel Case, it is generally ignored.[49]

The impact of the second baseline is that a copyright owner will be harmed only when they would have fared better in the defendant’s absence than they did as a result of his/her conduct. Effectively this means that the copyright owner is harmed only when they have lost sales because of the defendant[50] (i.e. when they can show quantifiable harm). This definition faces several challenges. Obvious challenges are deciding who should bear the burden of proof in showing this harm[51] and what the appropriate test of causation should be.[52] However, there are two less obvious and perhaps more challenging issues.

First, what do copyright owners need to show in order to prove quantifiable harm?[53] Do they need to show that the defendant would have purchased the work at the prevailing market price? If so, what of the person who has infringed copyright, but whose maximum willingness to pay for the use of the copyright work was less than this price?

Second, and perhaps most importantly, can the copyright owner be said to have suffered quantifiable harm when they have lost sales in a market in which they did not anticipate making sales?[54] Can it, for example, be said that a computer game that otherwise infringes a novel that was published in the 1950’s costs that novelist sales in the computer game market of the 1990’s?[55] Such a consideration is especially important in an era of rapid technological development.

The Panel Case pays insufficient attention to the definition of harm, yet it is reasonably clear that Conti J adopts the second baseline and requires the plaintiff to show some form of quantifiable harm. For example, he states ‘prejudice to and diminution in profits, directly and indirectly, will be material [in deciding if harm has been inflicted].’[56] Additionally, had he adopted the first baseline he would have found that some form of harm had been inflicted as Ten had not purchased a licence for use of the work.

The formulation adopted by Conti J is ambiguous: what exactly is an indirect diminution in profits? Indeed, what constitutes a prejudice to profits? Moreover, Conti J simply ignores the complex questions of proof, onus, causation, and expected markets. In doing so, The Panel Case has made harm a requirement for copyright infringement but has not clarified what is meant by harm, nor what is required to prove it, and so the effect of this is to impede the bargaining process that results in the formation of the market for copyright works.

C The Market Effect

To the extent that proving quantifiable harm requires the plaintiff to show that they have lost sales, this undermines the market for copyright works in another way. A rule that requires compensation for all unauthorized uses of copyright works provides a powerful incentive for users of copyright to seek out the owner and enter into a lawful transaction. Conversely, a rule that requires the copyright owner to show that they have suffered some form of quantifiable harm by an otherwise infringing use provides a much smaller incentive. The extent of this discrepancy depends on the precise definition of quantifiable harm that is adopted and issues of onus and proof. At one end of the spectrum if the plaintiff had to prove that the defendant would have purchased the work at the prevailing market price, it would be open to would-be defendants to use the work and then to deny that they would have purchased it at that price. This would almost operate as an incentive to use works indiscriminately and then put the owner to their case.[57] At the other end of the spectrum, there might be a rebuttable presumption that a use by the defendant causes quantifiable harm. Such a scenario would closely approximate the incentive effects of a rule that does not require harm, but logically the incentive should be somewhat weaker. The point is that requiring copyright owners to show that they have suffered quantifiable harm subtracts from the incentives for the defendant to enter into a voluntary transaction with the plaintiff. This undermines the market for copyright works.

D Author Incentives

Proponents of the harm concept typically argue ‘if there is no harm to the copyright owner, there is no demonstrated need for rewards under copyright to motivate the creation and dissemination of the work.’[58] Superficially this argument has some appeal, but on closer inspection it is not so attractive.

Landes and Posner suggest that an author will create a work when the expected return from creation is greater than the costs of creation.[59] Consequently, a factor will operate as an incentive to the author if it either lowers costs or increases expected return. It has also been suggested that something effects expected return only to the extent that it is foreseeable prior to the creation of the copyright subject matter.[60] It is possible for a copyright owner to foresee that whilst certain uses of their work may not cause them quantifiable harm, they will nevertheless be entitled to a licence fee for those uses. As such, non-harmful use can form part of the expected return of a potential author. Moreover, given that the prevailing weight of authority prior to The Panel Case indicates that such uses would be compensated,[61] the effect of making quantifiable harm a necessary criterion for infringement is to reduce the incentives to create.

IV Consistency With Other Legislative Provisions

As copyright is primarily a statutory regime, any judicial developments of copyright law should be consistent with the wider statutory framework. This section aims to show that the requirement of quantifiable harm is inconsistent with the remedies in the Copyright Act and the closed fair dealing exceptions.

A Gain-Based Remedies

As is evident in the fact that accounts of profit[62] and damages in the form of a reasonable licence fee[63] are available remedies in copyright infringement actions, copyright law remedies are to an extent directed at the defendant’s gain rather than the plaintiff’s loss. As Edelman notes, gain-based remedies should have nothing to do with a plaintiff’s loss.[64] So if a plaintiff would not otherwise have to show any harm (in the sense that the word is used in The Panel Case) to obtain a remedy, then why should they have to show harm in order to prove infringement?

1 Accounts of Profit

Simply stated, the remedy of an account of profits allows a plaintiff to recover profits made by the defendant that are attributable to the infringement of copyright.[65] Being an equitable remedy[66] an account can be refused on established equitable principles such as delay and acquiescence.[67] However, it is available even if the plaintiff has suffered no loss,[68] where the plaintiff would not have actually made the profit him/herself[69] and even where the plaintiff has actually benefited from the infringement.[70] Matters of loss are of no consequence because the remedy is restitutionary[71] and hence aimed at reversing an unjust enrichment rather than compensating the plaintiff’s loss.[72] Consequently, it is paradoxical to state that a plaintiff can have a remedy that has nothing to do with their loss and everything to do with the defendant’s gain only if they can first show that they have suffered some form of loss.

2 Notional Licence Fees

Courts typically award damages on one of two grounds. The ordinary award is damages representing the decrease in value of the copyright as a chose in action.[73] The other award is based on the amount of a fictional licence fee that would have been negotiated between the parties.[74] The principal authority in Australia regarding notional licence fees is Autodesk v Cheung,[75] which held that whilst a notional licence fee was in principle an appropriate award of damages, it could only be awarded when it could be inferred that the parties would actually have entered into such a licence agreement.[76]

There is an element of disagreement as to whether notional licence fees are actually an award of damages or a form of disgorgement of the defendant’s ill-gotten gains. In support of the latter position, Coleman[77] and the US District Court[78] have argued that a notional licence fee disgorges the costs saved by the defendant in not purchasing a licence. This approach, essentially a modified account of profits, focuses on the defendant’s gain. The greatest proponents of the former argument are Sharpe and Waddams, who view the notional licence fee as a form of compensation for the plaintiff’s lost opportunity to bargain with the defendant and enter into a licence agreement.[79] Most courts assert that notional licence fees are an award of damages.[80] The approach of Sharpe and Waddams rests heavily on a definition of harm, or damage in this case, that assesses the plaintiff’s loss from the state of affairs that would have existed if the defendant had acted lawfully. In short, it adopts the first baseline mentioned above.[81] So regardless of whether one sees the award as a form of damages or disgorgement, it is clear that the notional licence fee is inconsistent with the requirement of quantifiable harm as it is defined and applied in The Panel Case.

B Fair Dealing Exceptions

The fair dealing provisions provide that a fair dealing with a work[82] for purposes of research and study,[83] criticism and review,[84] or reporting the news[85] does not constitute infringement. These purposes are exhaustive, not inclusive or illustrative. Section 40(2) of the Copyright Act outlines a list of inclusive factors to be considered in deciding if the use of the work is a fair dealing. Whilst these factors are confined to fair dealing for the purpose of research and study, it has been suggested that they apply to all of the fair dealing purposes.[86] These factors are: the purpose of the dealing, the nature of the work, the possibility of obtaining the work within a reasonable time at an ordinary commercial price, the effect of the dealing on the market value of the work, and the amount and substantiality of the part reproduced.

It should be immediately obvious that these factors bear a strong similarity to the factors used by Conti J in The Panel Case to assess whether a use of a work relates to a substantial part of that work and so amounts to an infringement. Unlike the provisions in the statute, however, under Conti’s test, a use of a work does not have to be for a specific purpose such as research or study: his test applies generally to all uses. The effect of this is to create something that closely resembles an open ended fair dealing exception similar to Copyright Act of 1976, 17 USC §107.

Section 107 of the Copyright Act of 1976, 17 USC is in similar terms to the Australian fair dealing exceptions, however;

1)s 107 applies to “purposes such as criticism,...news reporting... or research,” so the fair dealing purposes are inclusive.
2)The list of factors to be considered in deciding if the use is a fair use (dealing) does not include the possibility of obtaining the work in a reasonable time at an ordinary commercial price.

In 1998 the CLRC specifically recommended that Australia adopt an open ended fair dealing provision similar to Copyright Act of 1976, 17 USC §107.[87] This recommendation has not as yet been enacted by Parliament, and so the effect of The Panel Case is to introduce into a predominantly statutory regime something that Parliament has apparently chosen not to include.

V Copyright as a Right of Property

Section 196(1) states that ‘copyright is personal property.’ This section aims to show that despite arguments to the contrary, copyright is indeed proprietary. Furthermore, certain rights and consequences flow from this – consequences and rights that the Panel Case violates.

A Is Copyright Really Proprietary?

Some academics point to the fact that there are various differences between copyright and phenomena that are traditionally described as property, usually land, and so conclude that copyright is not really a form of property, or at least a different form of property.[88] These arguments draw primarily two[89] distinctions between land and copyright: (1) copyright is limited in duration to, in the case of part III works, the life of the author plus fifty years,[90] but interests in land are indefinite; (2) copyright is subject to various exceptions, such as fair dealing, whereas real property is absolute. However, it is evident that real property also exhibits similar limitations.[91]

With respect to the argument on duration, leases, a recognised proprietary right and estate in land,[92] are also limited in duration. A long line of authority supports what has become known as the rule in Lance v Chantler,[93] which states that a valid lease is not created unless the maximum duration of the lease is certain at the time the lease is to take effect.[94] A defining feature of a lease, therefore, is that, similar to copyright, after a specified period of time the proprietary right ceases to exist. Moreover, in Victoria,[95] and other jurisdictions,[96] statute deems leases of greater than 300 years with an unexpired residue of at least 200 years to be grants of fee simple, so in effect leases also exhibit a statutorily proscribed maximum duration.[97]

As to the fair dealing exceptions, it is evident that they are simply examples of the proprietary right of copyright giving way to a variety of competing public interests. Fair dealing for the purpose of research and study, for example, recongises the public interest in education, and fair dealing for the purpose of criticism and review recongises the interest in free speech. Land law has similar exceptions: zoning laws impose restrictions on the alienation of land;[98] land is also subject to planning regulations and environmental controls.[99] Perhaps most importantly the famous New Jersey Supreme Court case of State v Shack[100] in recognising that ‘property rights serve human ends... they are recognized to that end and are limited by it,’[101] held that a farmer’s interest in exclusive possession had to give way to the competing interest of providing medical attention to farm workers. As noted by Christman,[102] the idea that property is not subject to limitations is based on the “obviously false” view that interests in land are absolute and one man’s sole dominion to the exclusion of all others.[103]

Consequently, these arguments against the proprietary nature of copyright must give way to the clear statutory edict in s 196(1) that copyright is personal property. Additionally, copyright exhibits the hallmark features of property: it is capable of alienation,[104] and through providing exclusive rights,[105] insures that copyright grants exclusivity and a right to use.

B Consequences of a Proprietary Right

The consequences of a proprietary right are many and varied, but in light of the Panel Case, two such consequences are worth highlighting. First, the bundle of rights that comprise a right to property include a right to income from the property and a right to exclude. Second, interference with a proprietary right is actionable per se, without the need to show damage (ie a form of quantifiable harm).

1 The Incidents of the Bundle of Rights

There is almost universal approval, both academic and judicial, for the proposition that property comprises a bundle of rights.[106] The starting point for most inquiries as to what makes up this bundle is Honore’s incidents of ownership.[107] According to Honore, property comprises the following five rights: to possess (which is the right to have exclusive control of the thing[108]), to use, to manage, to income from the property, and to security.[109] This is not to say that there is no disagreement as to what makes up the bundle of rights,[110] but for present purposes it is the right to possession and the right to income that are important and the vast amount of authority accepts these as fundamental characteristics of property.

As to the right to possess, it has previously been mentioned that the right to exclusivity is the hallmark characteristic of property. Indeed, there is so much authority on this point that it is almost axiomatic.[111] With respect to the right to income, this right has been recongised as early as Proudhon,[112] and more recently by Macpherson,[113] Christman[114] and many others. It has also been recognized judicially for copyright.[115]

2 The Need to Show Harm

Trespass, which simply defined is an interference with the plaintiff’s right to possession, is in many respects the real property analogue to copyright infringement, which is an interference with the plaintiff’s right to communicate, copy, broadcast etc as the case may be. A long line of authority indicates that trespass, both to land[116] and goods,[117] is, actionable without proof of damage.

In Plenty v Dillon[118] for example, the High Court of Australia held that the plaintiff landowner could recover damages in trespass from a police officer who entered his property and arrested his daughter without the appropriate warrant. This was held despite the fact that there was no damage to the property.

Likewise, in Kirk v Gregory[119] a jewellery owner was able to recover in trespass against a storeowner who moved the jewellery to an adjacent shop whereupon it was stolen.

C The Effect of the Panel Case

The Panel Case, by creating a rule that deems non-harmful uses to be non-infringing uses, has denied the copyright owner the exclusive right to rebroadcast (or to communicate, make a copy etc in other circumstances) the copyright work. Instead, it has made the right of the copyright owner the right to rebroadcast the work but only in circumstances where that re-broadcasting would be harmful. This fundamental limitation on the right to exclude is wide-ranging and profound.

It may be observed that the right of the copyright owner was not exclusive in any event as it was subject to fair dealing provisions and, in the case of TV broadcast copyright, to s 111.[120] However, these exceptions relate to uses for a specific purpose (private and domestic use, reporting the news, criticism and review, and research and study) and are narrow and limited. This is to be compared with the requirement to show quantifiable harm, which, relating to uses for any purpose, is expansive and open ended.

The decision also denies the owner the chance to licence the use of the work to people who would use it in such a way that it would not cause quantifiable harm to the owner. This deprives the copyright owner of the right to demand licence fees for such a use of the work, and so deprives the copyright owner of the full appreciation of their right to income from the property.

Likewise, The Panel Case offends the proposition that an interference with a property right is generally actionable per se, without the need to show damage.

IV Conti J’s Distinction Between Part III and IV Works

The Panel decision is explicit that its doctrine relates to only part IV subject matter.[121] The arguments addressed in this essay apply equally to both part III works and part IV subject matter, so whatever might be said of the distinction between part III works and part IV subject matter in other contexts, there is no valid ground for distinguishing between them for the purposes of making quantifiable harm a requirement of copyright infringement. Their economic foundations are similar if not identical: they are to the same extent public goods and both seek to strike a balance between incentives to create and the public interest in access to copyright works. Landes and Posner, for example, do not distinguish between publishers and authors,[122] and they clearly include cinematographic films[123] and sound recordings within their analysis.[124] The Copyright Act also draws no distinction between part III works and part IV subject matter as regards remedies[125] and the fair dealing exceptions for audio-visual items are mirror images of the provisions for part III works.[126] Similarly, s 196(1) makes no distinction between works and other subject matter, so the copyright attaching to part IV subject matter is just as proprietary as that which attaches to part III works, though the bundle of rights is smaller.[127] Moreover, to the extent that, being less creative, part IV subject matter should receive less protection, this would seem to be adequately covered by the fact that this bundle of rights is smaller.

V Conclusion

Harm is a legitimate inquiry in several fields of the law: in non-proprietary tort it is the ‘gist of the action,’[128] and in many areas, copyright included, it is relevant in deciding the quantum of damages. However, as a criterion that needs to be proved in order to make out copyright infringement one must question its desirability for a number of reasons.

First and foremost the concept of harm, both inherently and as adopted by Conti J, eludes precise definition This results in uncertainty as to the rights of the copyright owner and hence undermines the ability of parties to negotiate an efficient outcome for the use of copyright works. In turn this reduces incentives to create copyright material and frustrates perhaps the primary goal of copyright law.

Perhaps equally significant, requiring a form of quantifiable harm for copyright liability seems inconsistent with the wider statutory focus of the Copyright Act, particularly the clear statement in s 196(1) that copyright is personal property. It violates the long established rule that interference with a right of property is actionable per se and is incompatible with the bundle of rights (particularly the rights to exclusion and income) that traditionally attach to a right of property. Moreover, an inquiry into harm seems misplaced in a system that seeks to achieve some level of restitution through remedies such as an account of profits and damages in the form of a notional licence fee.

On the 25th of July, 2001, Channel Nine filed to appeal the decision of Conti J to the Full Federal Court. To date, judgment has been reserved. It will be interesting to see whether the Court takes this opportunity to reconsider the desirability of harm as a requirement of copyright liability.


[*] Articled Clerk, Minter Ellison Lawyers, Melbourne. I wish to thank David Brennan, David Lindsay and Eloise Dias for their helpful comments on earlier drafts of this article. I also wish to thank the anonymous referee. Any errors are, of course, my own.

[1]Bradbury v Hotten [1852] EngR 756; (1872) 8 LR Exch 1, 5 (Kelly CB) (‘If [the plaintiffs works] have been so copied as to...amount to a material part of the plaintiff’s publication, and the defendant has thus obtained a profit which would or might otherwise have been the plaintiffs’, then there has been a piracy for which the defendant is responsible”); at 6 (“Is [the defendant] applying to his own use and for his own profit what otherwise the plaintiffs might have turned, and possibly still may turn, to a profitable account?’).

[2] Weatherby & Sons v International Horse Agency and Exchange Ltd [1910] 2 Ch D 297, 305; Kipling v Gentosan [1917-1923] MacG Cop Cas 203, 204; Hawkes & Son (London) v Paramount Film Services (1934) 1 Ch D 593, 603 (Lord Hanworth MR) and 608 (Romer LJ).

[3] Hanfstaengl v Empire Palace [1894] UKLawRpCh 102; [1894] 3 Ch 109, 130; Nationwide News & Ors v Copyright Agency Ltd [1996] FCA 1395; (1996) 136 ALR 273, 291, 292.

[4] TCN Channel Nine v Network Ten [2001] FCA 108; (2001) 50 IPR 335.

[5] Walter Copinger et al, Copinger and Skone James on Copyright (13th ed, 1994) 175.

[6] Staniforth Ricketson, The Law of Intellectual Property, Copyright, Designs and Confidential Information (2nd ed, 1999) [9.45] [9.60].

[7] Paul Goldstein, Copyright: Principles, Law, and Practice [1.2.3.3].

[8] See Wendy Gordon, ‘An Inquiry into the merits of copyright: The Challenges of Consistency, Consent and Encouragement Theory’ (1989) 41 Stanford Law Review 1343, 1370; David Ladd ‘The harm of the Concept of Harm in Copyright’ (1983) 30 Journal of the Copyright Society of the USA 420, 422; David Ladd, ‘Economic Harm: A Trojan horse in copyright’ (1982) A.B.A Summary of Proceedings, Section of Patent, Trademark and Copyright Law 158, 159.

[9] Douglas Y’Barbo, ‘The Heart of the Matter: The Property right conferred by Copyright’ (1998) 48 Mercer Law Review 643, 651, 653.

[10] TCN Channel Nine v Network Ten [2001] FCA 108; (2001) 50 IPR 335.

[11] Note that Ten also recorded the Nine broadcasts onto a video cassette in order to televise it, so were also sued for making a cinematographic film of these broadcasts under s 87(a) of the Copyright Act. This was the subject of a separate hearing (see TCN Channel Nine v Network Ten (Unreported, Federal Court of Australia, Conti J, 4 July 2001) .

<http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/841.html> ). This decision simply applied the principles arising in the subject case and, consequently, will not be considered in this essay.

[12] Conti J stated that had it been necessary for him to decide the issue, he would have found fair dealing in eleven out of the twenty instances of alleged infringement: see TCN Channel Nine v Network Ten [2001] FCA 108; (2001) 50 IPR 335, 386-397.

[13] Part III works are: literary, dramatic, musical and artistic works (see s 10(1) Copyright Act). Part IV subject matter consists of: sound recordings (see s 85 Copyright Act), cinematograph films (see s 86 Copyright Act), television and sound broadcasts (see s 87 Copyright Act) and published editions of works (see s 88 Copyright Act). There are several distinctions between part III works and part IV subject matter, primarily:

1. Part III works must be original (s 32 Copyright Act), whereas there is no such requirement for part IV subject matter (see Telmak Teleproducts Australia Pty Ltd v Bond International Pty Ltd (1986) 65 ALR 319);

2. Part III works must be expressed in material form (s 22 Copyright Act), again there is no such requirement for part IV subject matter;

3. The exclusive rights attaching to part III works include the expansive right to reproduce, whereas the exclusive rights attaching to part IV subject matter include the much more limited right of literal reproduction (or copying) (see CBS Records Australia Ltd v Telmak Teleproducts Australia Pty Ltd (1988) 9 IPR 440)

4. The duration of copyright in part III works is the life of the author plus fifty years (s 33 Copyright Act). The duration of copyright in part IV subject matter is 50 years from the date of first publication or broadcast for sound recordings, television and sound broadcasts and cinematographic films, (ss 93-95 Copyright Act) and 25 years from the date of first publication for published edition copyright (s 96 Copyright Act)

5. The copyright in part III works is generally conferred on authors (s 35 Copyright Act), whilst copyright in part IV subject matter is conferred on broadcasters, publishers and producers as the case may be (ss 97-100 Copyright Act);

For a discussion of why no distinction should be made between part III works and part IV subject matter for the purposes of harm as a requirement of liability see n 121 and accompanying text.

[14] TCN Channel Nine v Network Ten [2001] FCA 108; (2001) 50 IPR 335, 350-351, 355-356.

[15] [1996] FCA 1395; (1996) 136 ALR 273, 291.

[16] TCN Channel Nine v Network Ten [2001] FCA 108; (2001) 50 IPR 335, 345.

[17] Ibid 370-371, 381-382.

[18] Ibid 370-371 (‘...The notion of substantiality falls to be determined as a matter of degree by reference to the quality of presentation and screen appearance of the program which has been taken, as well as the quantity of the program in terms of viewing time which has been also taken, with sometimes more emphasis to be placed on the former than the latter, or vice versa, depending on the circumstances of the case and in particular, what has been actually copied. Or put another way by Nationwide News in more practical terms, can it be concluded, for instance in the present circumstances of dispute, that harm has been caused to Nine's commercial interest in the whole of its particular program?’), at 381-382 (‘One simple and practical test is to ask the question whether there has in truth taken place a "pirating" by the alleged infringer from the program or program segment, that is to say, a significant interference with the television broadcaster's commercial interest in terms of the nature, value and degree of what has been taken; in short, has harm been inflicted on the television broadcaster's commercial interest in the whole of the program or program segment.’)

[19] Ibid .

[20] Ibid 37.

[21] Ibid 370-371, 381-382.

[22] Ibid 382-383.

[23] Ibid 384.

[24] Ibid 384-385.

[25] Ibid 385.

[26] Ibid 381-382. See also Ibid 370-371.

[27] Ibid 371. See also Ibid 382.

[28] Ibid 370, 371, 381-382, 384.

[29] See, for example, K Greene, ‘Motion Picture Copyright Infringement and The Presumption of Irreparable Harm: Toward a Reevaluation of the Standard for Preliminary Injunctive Relief’ (1999) 31 Rutgers Law Journal 173, 19 (stating ‘A consensus exists that economic considerations provide the primary theoretical basis of copyright law;’ see also Gordon, above n 8, 1439 (stating that ‘copyright can properly be viewed as an economic doctrine’). To be fair there are also natural law justifications but as stated by Vaver, ‘these arguments fail to make the case’: see D Vaver, ‘Some Agnostic Observations on Intellectual Property’ (1991) 6 Intellectual Property Journal (Canada) 125, 126. The US Supreme Court has also expressly rejected a natural rights justification of copyright protection: see Wheaton v Peters 33 US (8 Pet) (1834) 591, 660-661.

[30] The seminal article in this area is William Landes and Richard Posner, ‘An Economic Analysis of Copyright law’ (1989) 18 Journal of Legal Studies 325; see also Gillian Hadfield, ‘The Economics of Copyright: An Historical Perspective’ (1992) 38 Copyright Law Symposium (ASCAP) 1.

[31] See, for example, Norman Siebrasse, ‘A property rights theory of the limits of copyright’ (2001) 51 University Toronto Law Journal 1, 3; Goldstein, above n 7, [1.1]; Landes and Posner, above n 30, 326.

[32] See, for example, Andrew Coleman, ‘Copyright Damages and the Value of the Infringing Use: Restitutionary recovery in Copyright Infringement Actions’ (1993) American Intellectual Property Law Association Quarterly Journal 91, 104

[33] See Landes and Posner, above n 30, 328; Hadfield, above n 30, 24.

[34] See Coleman, above n 32, 104; Hadfield, above n 30, 23, 24.

[35] Ibid.

[36] See Landes and Posner, above n 30, 332.

[37] Siebrasse, above n 31, 1.

[38] Ibid; Hadfield, above n 30, 15, 27.

[39] See Landes and Posner, above n 30, 340.

[40] Siebrasse, above n 31.

[41] Ibid 3.

[42] Roger Blair and Thomas Cotter, ‘An Economic Analysis of Damages Rules in Intellectual Property Law’ (1998) 39 William and Mary Law Review 1585, 1606.

[43] R Coase, ‘The Problem of Social Cost’ (1960) 3 Journal of Law and Economics 1, 8.

[44] Siebrasse, above n 31, 23.

[45] See Ladd, ‘Economic Harm: A Trojan Horse in Copyright’ above n 8, 159; see also Ladd, ‘The Harm of the Concept of Harm in Copyright’ above n 8, 432.

[46] Gordon, above n 8, 1379 in n 169. See also Wendy Gordon, ‘Of Harms and Benefits: Torts, Restitution and Intellectual Property’ (1992) 21 Journal Of Legal Studies 449, 451.

[47] Gordon, above n 8, 1385.

[48] See Gordon, above n 8, 1385; Robert Sharpe and S Waddams, ‘Damages for Lost Opportunity to Bargain’ (1982) 2 Oxford Journal of Legal Studies 290; compare Y’Barbo, above n 9, 708.

[49] See below n 56 and accompanying text.

[50] See Y’Barbo, above n 9, 708. Specifically, Y’Barbo states that the ‘harm is caused by (1) pricing below the first author’s marginal cost...and (2) selling copies in the first author’s market.’

[51] See Ladd, ‘Economic Harm: A Trojan Horse in Copyright,’ above n 8, 159.

[52] Ibid 160.

[53] Ibid 159.

[54] Ibid 160. See also Gordon, above n 8, 1385.

[55] This problem has led some theorists to reject this definition of harm. See Gordon, above n 8, 1385.

[56] See TCN Channel Nine v Network Ten [2001] FCA 108; (2001) 50 IPR 335, 382. To the extent that it is possible to discern a definition of harm in other cases, it seems that this definition is adopted by other courts who have thought that harm is a relevant criterion, albeit by using slightly different language: see Hanfstaengl v Empire Palace [1894] UKLawRpCh 102; [1894] 3 Ch 109, 130, the test in this case is whether or not there is competition with the plaintiff. See also Nationwide News & Ors v Copyright Agency Ltd [1996] FCA 1395; (1996) 136 ALR 273, 291, 292.

[57] Whilst it is beyond the scope of this paper to discuss the issue, it would seem also to have the effect of converting a property rule into a liability rule: see Calabresi and Melamed, ‘Property Rules, Liability Rules, and Inalienability: One View of the Cathedral’ (1972) 85 Harvard Law Review 1089.

[58] Ladd, ‘The Harm of the Concept of Harm in Copyright,’ above n 8, 425.

[59] Landes and Posner, above n 30, 326.

[60] Timothy Brennan, ‘Copyright, Property and the Right to Deny’ (1993) 68 Chicago Kent Law Review 675, 703

[61] See above, n 2.

[62] See Copyright Act s 115(2).

[63] See for example Watson Laidlaw & Co Ltd v Pott, Cassels and Williamson [1914] UKHL 238; (1914) 31 RPC 104; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales (1975) 6 ALR 445; Australasian Performing Rights Association v Grebo Trading Co Pty Ltd and Others 23 ACTR 30.

[64] James Edelman, ‘Gain-Based Remedies for Wrongdoing’ (2000) 74 Australian Law Review 231, 232.

[65] See for example Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50; (1968) 122 CLR 25, 32, 34. For a general discussion of an account of profits in the intellectual property context see: Fiona Patfield, ‘The Remedy of Account of Profits in Industrial and Intellectual Property Litigation’ [1984] University of New South Wales Law Journal 189; Fiona Patfield, ‘The Modern Remedy of Account’ [1985] AdelLawRw 7; (1987) 10 Adelaide Law Review 1; T Wells, ‘Monetary Remedies for Infringement of Copyright’ (1989) 12 Adelaide Law Review 165; P Hastie, ‘Restitution and Remedy in Intellectual Property Law’ (1996) 14 Australian Bar Review 6, 12-20.

[66] Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50; (1968) 122 CLR 25, 34.

[67] See Hastie, above n 65, 13.

[68] See Consul Development Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8; (1975) 132 CLR 373; Warman International v Dwyer [1995] HCA 18; (1995) 182 CLR 544, 557-558.

[69] Boardman v Phipps [1966] UKHL 2; [1966] 3 All ER 721.

[70] Ibid.

[71] Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50; (1968) 122 CLR 25, 32.

[72] Warman International v Dwyer [1995] HCA 18; (1995) 182 CLR 544, 561.

[73] Sutherland Publishing Ltd v Caxton Publishing Co Ltd [1936] 1 Ch 323 at 326. See also: Ricketson, above n 6, [13.30]; Wells, above n 65, 166-167.

[74] Autodesk v Cheung [1990] FCA 121; (1990) 94 ALR 472; Watson, Laidlaw & Co Ltd v Pott, Cassels and Williamson [1914] UKHL 238; (1914) 31 RPC 104; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales (1975) 6 ALR 445; Australasian Performing Rights Association v Grebo Trading Co Pty Ltd 23 ACTR 30. See also: Wells, above n 65, 168-169.

[75] [1990] FCA 121; (1990) 94 ALR 472.

[76] Ibid 476-477.

[77] Coleman, above n 32, 109.

[78] Business Trends Analysts v The Freedonia Group [1989] USCA2 822; 887 F 2d 399.

[79] Sharpe and Waddams, above n 48; compare R Mahoney, ‘Overcompensation and the User Principle’ (1996) 24 Australian Business Law Review 59, 60 who state that the theory of Sharpe and Waddams has ‘cold water thrown upon it’ by the decision in Surrey County Council v Bredero Homes Ltd [1993] EWCA Civ 7; [1993] 1 WLR 1361, 1368-1369.

[80] See for example Deltak Inc v Advanced Systems Inc [1985] USCA7 858; 767 F.2d 357, 360-361; Watson Laidlaw & Co Ltd v Pott, Cassels and Williamson [1914] UKHL 238; (1914) 31 RPC 104; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales (1975) 6 ALR 445; Australasian Performing Rights Association v Grebo Trading Co Pty Ltd and Others 23 ACTR 30; Autodesk v Cheung [1990] FCA 121; (1990) 94 ALR 472.

[81] See n 48, and accompanying text.

[82] This includes both part III and audio-visual items.

[83] See Copyright Act s 40 for part III works; see Copyright Act s 103C for audio-visual items.

[84] See Copyright Act s 41 for part III works; see Copyright Act s 103A for audio-visual items.

[85] See Copyright Act s 42 for part III works; see Copyright Act s 103B for audio-visual items. There is also a fair dealing exception for the purpose of judicial proceedings and professional legal advice: see ss 43 and 104A of the Copyright Act.

[86] See CLRC Simplification Report Part 1, [4.09].

[87] Ibid [6.35].

[88] See for example Dane Ciolino, ‘Reconsidering Restitution in Intellectual Property’ (1999) 48 Emory Law Journal 1, 42; D Libling, ‘The Concept of Property in Intangibles’ (1978) 94 Law Quarterly Review 103, 103-104.

[89] There are also other distinctions: the public good nature of copyright, its statutory nature, and compulsory licensing. See generally: Brennan, above n 60. I concentrate on the two subject distinctions because they are the most obvious differences.

[90] See ss 33(2). Copyright in sound recordings and cinematographic films last for 50 years from the year in which the recording or film was first published: see ss 93, 94. Copyright in television broadcasts lasts for 50 years from the year in which the broadcast was first made: s 95. Copyright in published edition lasts 25 years from the year in which the edition was first published: s 96.

[91] See Brennan, above n 60, 681-697; Gordon, above n 46, ‘Of Harms and Benefits: Torts, Restitution and Intellectual Property,’ 449.

[92] Harpum C, Megarry and Wade: The Law of Real Property (6 ed, 1999) [3-009]

[93] [1944] KB 368.

[94] See for example Lance v Chantler [1944] KB 368 (which held that a grant purported grant of a lease for a year was invalid); Morison v Edmiston [1907] VR 191; Bishop v Taylor [1968] HCA 68; (1968) 118 CLR 518 (which held that a grant of a lease until the end of the peanut crop was invalid); Prudential Assurance Co Ltd v London Residuary Body [1991] UKHL 10; [1992] 3 All ER 504 (which held that a grant of a lease until the land was acquired by the council was invalid). For a recent case see Pemberton v Dimitrevic [2001] NSWSC (Unreported, New South Wales Supreme Court, Bergin J, 23 February 2001)

<http://www.butterworthsonline.com/lpBin20/lpext.dll/bw/L2/66/4/5/1d6578/1d8e0a?f=templates & fn=bwaltmain-j.htm & 2.0> (which held that a lease stated to terminate fourteen days after registration of the proposed plan of subdivision was invalid).

[95] Property Law Act 1958 (Vic) s 153.

[96] Conveyancing Act (NSW) s 134 ; Conveyancing and Law of Property Act (Tas) s 83.

[97] Others have pointed to similar time restrictions in the law of real property: see for example Brennan, above n 60, 697 where he notes that land is subject to the rule against perpetuities and the time bar on adverse possession.

[98] Brennan, above n 60, 697; John Christman, The Myth of Property: Toward an Egalitarian Theory of Ownership (1994) 22; K Gray ‘Property In Thin Air’ (1991) 50 Cambridge Law Journal 252, 257.

[99] Gary, above n 98, 257; K Gray and S Gray ‘The Idea of Property in Land’ in Bright and Dewar, Land Law: Themes & Perspectives 15, 43, 45.

[100] 277 A.2d 369 (NJ, 1971).

[101] Ibid 372.

[102] Christman, above n 98, 22.

[103] Blackstone, Commentaries on the Laws of England (11th ed) (1791) Vol II, 2. A similar defintion was also endorsed by Austin: see John Austin, Lectures on Jurispredence, Vol 2 817-818 (3rd ed).

[104] Copyright Act s 196.

[105] ss 31, 85, 86, 87, 88.

[106] See Gray, above n 98, 259; J Penner, ‘The Bundle of rights picture of Property’ (1996) UCLA Law Review 711, 712; Jeremy Waldron, The Right to Private Property (1988) 49; Stephen Munzer, A Theory of Property 26; A Tay and E Kamenka, ‘Introduction: Some Theses on property’ [1988] UNSWLawJl 9; (1988) 11 University of NSW Law Journal 1, 4, 6; S Carter, ‘Does it Matter Whether Intellectual Property is Property?’ (1993) 68 Chicago Kent Law Review 715, 716; Andrew Beckerman-Rodau, ‘Are Ideas within the Traditional Definition of Property?’ (1994) 47 Arkansas Law Review 603, 606; Minister of the State for the Army v Dalziel [1944] HCA 4; (1944) 68 CLR 261, 285 ‘property, in relation to land, is a bundle of rights exercisable with respect to the land’; Milirrpum v Nablaco Pty Ltd and the Commonwealth of Australia (1971) 17 FLR 14, 272.

There are also some who oppose the bundle of rights view: see T Grey, ‘The Disintegration of Property’ in JR Pennock and Chapman eds, .Nomos, Vol 2, Property, (1980) 69-85; B Edgeworth, ‘Post-Property?: A Post-Modern Perspective Conception of Private Property’ [1988] UNSWLawJl 5; (1988) 11 University of New South Wales Law Journal 87, 98.

[107] See Waldron, above n 106, 49; John Christman, above n 98, 3-27; Munzer, above n 106, 22-36; Lawrence Becker, Property Rights: Philosophic Foundations (1977) 11-21.

[108] A Honore, ‘Ownership’ in A Guest (ed) Oxford Essays on Jurisprudence 107, 113.

[109] See Ibid 113-124. It also comprises the following six characteristics: transmissibility; absence of term; prohibitions on harmful use; liability to execution; residuarity.

[110] See for example Pound, ‘The Law of Property in Recent Juristic Thought’ (1939) 24 American Bar Association Journal 993, 997 who proposed a slightly different bundle of rights. See also Penner, above n 106, who thinks that property contains just one single right: a right of exclusion.

[111] See the authority in n 106.

[112] Stewart Edwards (ed), Selected Writings of PJ Proudhon, 69.

[113] C B Macpherson, ‘Capitalism and the changing Concept of Property’ in E Kamenka and R Neale (ed) , Feudalism, Capitalism and Beyond ( 1975) 104, 114.

[114] Christman, above n 98, 7.

[115] Australasian Performing Rights Association v Grebo Trading Co Pty Ltd and Others 23 ACTR 30, 31.

[116] See for example Entick v Carrington [1765] EWHC J98; 95 ER 807; Dumont v Miller (1873) 4 AJR 152; Lan v Wright [1935] SAStRp 6; [1935] SASR 20, 25; Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635, 639 (Mason CJ, Brennan and Toohey JJ), 654 (Gaudron and McHugh JJ); Yakamia Dairy Pty Ltd v Wood [1976] WAR 57.

[117] See Kirk v Gregory [1876] UKLawRpExch 1; (1876) 1 Ex D 55; Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd (1952) 1 All ER 796; see also Lord Shaw in Watson Laidlaw & Co Ltd v Pott, Cassels and Williamson [1914] UKHL 238; (1914) 31 RPC 104, 119 where he states ‘If A, being a liveryman, keeps his horse standing idle in the stable, and B, against his wish or without his knowledge, rides or even drives it out, it is no answer to A for B to say: ‘Against what loss do you want to be restored? I restore the horse. There is no loss. The horse is none the worse, it is better for the exercise.’’

[118] [1991] HCA 5; (1991) 171 CLR 635

[119] [1876] UKLawRpExch 1; (1876) 1 Ex D 55; see also Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd (1952) 1 All ER 796.

[120] Section 111 provides that the making of a film or sound recording of a television or sound broadcast is not an infringement of copyright if it is for private or domestic use.

[121] See above n 13, and accompanying text. It should be noted that at least one other case states that harm to the copyright owner may be a relevant consideration in determining whether a part III work has been infringed: Hanfstaengl v Empire Palace [1894] UKLawRpCh 102; [1894] 3 Ch 109, 130.

[122] Landes and Posner above n 30, 327.

[123] Ibid, 326.

[124] Ibid, 328.

[125] See Part V Copyright Act.

[126] See: ss 40, 103C; ss 41, 103A; ss 42, 103B; ss 43, 104A.

[127] The exclusive rights attaching to part IV subject matter include a right literal reproduction, or copying, as opposed to a general reproduction right: see generally above n 13. Also, there is no adaptation right attaching to part IV subject matter.

[128] See for example Pasley v Freeman [1853] EngR 745; (1789) 100 ER 450, 453; Munchies Management Pty Ltd v Belperio [1989] FCA 413; (1988) 84 ALR 700, 707; Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 118 ALR 385, 390.


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