On 23 May 2016, the full bench of the Federal Court of Australia confirmed that there is no copyright in a “live” electro-magnetic signal received by a broadcaster for it to use in broadcasts.
The appeal by the Commissioner of Taxation against Seven Network Limited related to a disputed payment which the Australian Taxation Office sought to characterise as a “royalty” under a treaty with Switzerland.
In upholding the primary judge’s decision, the Full Court confirmed (among other things) that the sounds and images being transmitted by the digital signal were not protected by copyright. The Court agreed with Channel Seven that to try to characterise the relevant signal as a “cinematograph film” was a “strained interpretation in order to meet perceived advances in technology”.
In particular, the Full Court concluded that the sounds or images carried by the relevant electrons and through a copper cable as a digital signal are not “embodied” in any material form that is capable of attracting copyright protection. The Full Court reasoned:
- for copyright purposes, a “cinematograph film” is not “made” until the first copy is made;
- there must be some relevant territorial connection between the cinematograph film and Australia;
- as a result of the definitions in the Act, there must be some “material embodiment” of the aggregated images and sounds that comprise the cinematograph film;
- there must be some connection between the aggregated sounds and images, rather than as contained in a discrete live signal which transmits a tiny fraction of images and sounds at any given moment;
- it is relevant that no sound or image was permanently stored in the copper coaxial cable; and
- as there is no fixation or material embodiment of the aggregated images and sounds, no cinematograph film is made because no first copy is made.
Although the law has not been significantly altered as a result of this decision, the case serves as a reminder of properly characterising the copyright material in issue. In this case, there was no copyright in the broadcast because it was not made by a broadcaster as understood under the Australian legislation (such as a radio or TV station) and the attempt to shoe-horn the data feed into the “cinematograph film” category was indeed, as the Full Court noted, “strained”.
The case (Commissioner of Taxation v Seven Network Limited  FCAFC 70) is available here.