Games, Television and Downloads

Katherine Giles, Alison Patchett, Lauren Mason and Samantha Joseph provide an overview of some of the important arts-related cases of 2005.

Stevens v Sony

It appears that the recent Sony v Stevens[1] decision is really only interesting for hard-core copyright nerds. Or is it?

Stevens was providing modification-chips for Sony Playstation machines so that users could play copied games and games from other territories. Sony commenced legal proceedings against Stevens in 2001, on the basis that Stevens' modification-chip was illegal because the Playstation included a technological protection measure (TPM) in the form of an access code stored in the Playstation CD-ROM which prevented use of copied games or games from another territory on the machine. Sony argued that the modification-chip was circumventing this TPM and was in breach of the anti-circumvention provisions in the Copyright Act.

The recent High Court case, Stevens v Sony was an appeal by Stevens against the decision of the Full Federal Court of Australia in 2003 where it was held that Sony's TPM had been circumvented by Stevens. In the recent Stevens v Sony High Court judgment, the court considered whether or not the Playstation actually included a TPM which was being circumvented by Stevens. The court held that the Playstation didn't contain a TPM and the TPM system only prevented the usability of copied games rather than actually preventing the making of an illegal copy of the game.

Arts Law is aware that some contemporary digital media artists use tools such as Playstation, X-Box, Atari and Commodore 64 machines for the purpose of creating artwork. Usually this involves playing or projecting images or films through these machines and sometimes involves manipulating or changing the machine to create a certain effect when the images or film are being projected. Arts Law was interested in whether Sony v Stevens would have any effect on this artistic practice of tinkering with the machine.

The recent decision is good for digital media artists that use this particular process of creating art work as legally they wouldn't be circumventing a TPM, and it reflects the view of the court that the Copyright Act should not prevent the carrying out of conduct that doesn't actually infringe copyright.

The Block case

In Nine Films & Television Pty Ltd v Ninox Television Limited[2] the Federal Court looked at the issue of format rights in television shows.

Nine commenced proceedings against Ninox alleging that Ninox made unjustified threats of copyright infringement against Nine. Ninox had accused Nine of infringing copyright in their New Zealand show Dream Home by producing and broadcasting The Block series.

Prior to making The Block, Nine licensed the right to produce and broadcast Dream Home in Australia from Ninox. Dream Home was screened by Nine during 2000 and after this Nine decided to discontinue the licensing deal. Nine then went on to produce and broadcast The Block series.

Ninox claimed that the production and broadcast of The Block infringed their copyright in Dream Home as it reproduced a substantial part of its format without permission.

The court noted copyright is not infringed when someone independently creates a program without copying or where there is no substantial reproduction, or similarity to, the material in which concepts are embodied. Nine argued that they independently created The Block and that there was no substantial similarity between The Block and Dream Home. The Court compared the key elements (including emotional aspects, key events and the main participants) in the programs and concluded that there was no infringement.

While the court did not determine if it is possible to claim copyright in a reality TV show format, the court doubted that there can be substantial reproduction required for copyright infringement where programs have large amounts of unscripted dialogue and interaction between participants.

The court commented that generally there is no copyright in central ideas, themes, or development lines of a program but rather in the combination of situations, events and scenes which reflect the working out or expression of the idea or theme. For copyright infringement there must be a degree of objective similarity between the two films as well as evidence of copying.

Recently, a similar case was commenced by the creator of Pop Idol and American Idol claiming (amongst other things) that the X Factor program infringed his copyright.

The Panel case

TCN Channel Nine Pty Limited v Network Ten Pty Limited[3]involved a popular Channel Ten television programme, The Panel, which used 20 excerpts from various Channel Nine programmes such as The Midday Show and Wide World of Sports. The excerpts ranged from 8 – 42 seconds in length and contained topical events from the media. The legal issue arose as to whether the excerpts constituted a "substantial" portion of the original broadcast.

In copyright law, if a substantial part of a work is used without the permission of the author or creator, copyright in the work is infringed. There is no specific rule for determining how much of a work must be reproduced for it to be a 'substantial' part. The court considered this term and concluded that a qualitative evaluation of the case and circumstances of the parties was required. Factors such as what was reproduced, the economic harm caused to the owner of the copyright, and the amount of the work that was reproduced were taken into account.

To assist in making this qualitative assessment, the court said that you must compare the part taken with the copyright work and ask whether it is possible to conclude from that comparison whether the part is a "substantial part" of the plaintiff's programme with reference to the following:

  • Is the reproduced excerpt the most important ingredient of the copyrighted work?
  • Are the excerpts 'highlights' from the programme?
  • Are the excerpts central to the programme in which it appeared?
  • Does the portion used constitute the heart – the most valuable and pertinent portion – of the copyrighted material?

It is always difficult to predict how courts will determine individual matters relating to film and broadcast copyright, however, it is clear that the focus is on the quality of the reproduced extract and its contextual meaning, rather than the quantity.

It was concluded in The Panels case that 11 out of the 20 excerpts used by Channel Ten infringed copyright. Other excerpts were held not to be a substantial portion or fell within the fair dealing provisions. Fair dealing exceptions to copyright infringement include research or study; criticism or review; reporting news; judicial proceedings or giving professional advice. Copying for the purpose of parody however does not fall within the accepted fair dealing provisions in Australia.

Kazaa case

The Federal Court of Australia recently handed down their much anticipated judgment[4] involving the operators of Kazaa's peer-to-peer (P2P) file sharing system. P2P software allows individual users to share files by downloading such files direct from another user's computer provided the sharing software has been activated.

The case was brought by a number of parties including major Australian record companies. They argued the operators had authorised the users of their P2P software to illegally download music files resulting in an infringement of copyright. The applicants pursued action against the companies not the individuals who used the software.

Under the Copyright Act a person infringes copyright when they exercise one of the exclusive rights (including the right to copy) of a copyright owner or when they authorise someone else to do one of these without the copyright owner's permission.  In this case it was held that the operators authorised the infringement of copyright by allowing users to reproduce without authorisation music files and by making their music files publicly available electronically to other users who could download the material.

This decision was made, despite the Kazaa site displaying terms of use and warnings about copyright infringement on their site. The court considered that it was obvious these warnings were not being adhered to and that it was, against the operator's interests to take further steps to prevent the infringement, as the operators of Kazaar made more money from advertising if more people were file sharing.

Several Kazaa operators are appealing this decision. Also, it has been reported recently that some record companies are considering taking the Kazaa operators back to court for failing to adhere to the Court order in which they were to have installed keyword filtering software by Monday 5 December 2005 to restrict Australian users from illegally downloading music files.


[1] Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58. Case review by Katherine Giles.

[2] [2005] FCA 1404. Case review by Alison Patchett.

[3] [2005] FCAFC 53 (26 May 2005); Network Ten Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14. Case review by Lauren Mason.

[4] Universal Music Australia Pty Ltd & Ors v Sharman License Holdings & Ors [2005] FCA 1242. Case review by Sam Joseph.

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