Game meats v Farm Transparency

The contortions of copyright law

Copyright is more often a sword than a shield but the recent case of The Game Meats Company of Australia Pty Ltd v Farm Transparency International Ltd illustrates that it can also be used to restrict access and publication of material a company would rather not show. In Game Meats there was an extraordinary outcome: forcing an assignment of copyright over footage taken while trespassing over a goat slaughterhouse.

This remedy goes much further than a simple injunction or destruction order. In effect it requires a constructive trust until the assignment in writing is made. This means that any third party seeking to publish the material would be in breach of The Game Meats Company’s copyright. This, in turn, overcomes the issue in ABC v Lenah Game Meats. In that case, decided back in 2001, the High Court discharged an interim injunction preventing the ABC from broadcasting footage obtained at a possum processing plant because Lenah Games Meats could not identify a right on which to order the injunction. (Although there was consideration in this case of a tort of invasion of privacy, such a right has not evolved at common law in Australia; instead, a new statutory tort came into existence in June this year.)

Injunctions as well as the imposition of fiduciary relationships and constructive trusts are not novel in intellectual property cases. Injunctions are also common in confidentiality and contract cases, but the actual assignment of copyright as a result of a successful trespass case is certainly novel.

There are many cases where restraint of publications has been sought for journalists who have trespassed in order to get the story – although rarely successful. Even the Pentagon Papers were able to be published. In Douglas v Hello! Ltd Michael Douglas and Catherine Zeta-Jones were able to restrain via interlocutory injunction the ability to publish photographs, but the injunction was discharged two days later and the photos subsequently published. In Lincoln Hunt Australia Pty Ltd v Willesee an injunction to stop a recording being published when reporters filmed the lobby of a company was refused. In Windridge Farm Pty Ltd v Grassi a similar slaughterhouse situation arose where the plaintiff applied for an order that copyright be assigned but was refused. This was because the plaintiffs did not threaten to publish but merely to show the video to a veterinarian and authorities connected with animal welfare.

These farm trespass cases are situations where defamation actions are generally precluded and where injurious falsehood claims do not succeed as they do not involve false statements. Until now, they have been seen by animal welfare activists as perhaps the only way to make sure that companies are treating their animals fairly. The idea that the Court has power to grant an injunction in the appropriate case to prevent publication of a videotape or photograph taken by a trespasser even though no confidentiality is involved is not novel, especially where publication would be unconscionable – however, the assigning of copyright itself seems unusual. The court in Game Meats is basing an unprecedented step on the back of two paragraphs of obiter in ABC v Lenah Game Meats Pty Ltd.

Obviously, this order is to ensure any third parties do not publish, however it raises some odd questions, such as whether the plaintiffs would still have moral rights in the footage, were the company to use  it later?  Where is the public interest considered? Making these copyright cases rather than privacy and defamation means that the public interest in the footage and any consumer rights to know, as well as animal rights, can rightly be ignored. This is clearly not the purpose of the Copyright Act which is to incentivise creativity. Farm Transparency International have indicated a willingness to take this to the High Court – we may see the slaughter yet.