Telstra Corporation Ltd v Australasian Performing Right Association Ltd

(1997) 191 CLR 140

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(Judgment by: McHugh J)

TELSTRA CORPORATION LTD v AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LTD

Court:

Judges: Dawson, Gaudron
Toohey

McHughKirby JJ

Subject References:
COPYRIGHT
Exclusive rights
Infringement
Musical and literary works
Provision of music to telephone callers placed on hold
Callers using conventional telephones
Diffusion right
Whether Telstra caused works to be transmitted to subscribers to a diffusion service
Callers using mobile telephones
Broadcast right
Whether Telstra broadcast works.

Other References:
Copyright Act 1968 (Cth), ss 10(1), 26, 31(1)(a)(iv), 31(1)(a)(v), 199(4).

Judgment date: 14 AUGUST 1997

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Judgment by:
McHugh J

Telstra Corporation Limited ("Telstra") ^[F18] appeals against an order of the Full Court of the Federal Court of Australia which held that Telstra was liable for infringing the copyright in material that was transmitted through its telephonic and telecommunications services ^[F19] . The respondent, Australasian Performing Right Association Limited ("APRA") was, for relevant purposes, the assignee of the copyright in the material. At first instance Gummow J had held that Telstra was not liable ^[F20] .

The principal question in the case concerns the correct interpretation of s 31(1)(a)(iv) and (v) as informed by s 26 of the Copyright Act 1968 (Cth) ("the Act"). Section 31(1)(a)(iv) and (v) provide:

"For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right:

(a)

in the case of a literary, dramatic or musical work, to do all or any of the following acts:

...

(iv)

to broadcast the work;

(v)

to cause the work to be transmitted to subscribers to a diffusion service".

The right recognised by s 31(1)(a)(iv) is commonly referred to as the "broadcast right", and that recognised by s 31(1)(a)(v) as the "diffusion right".

Section 26 provides:

"(1) A reference in this Act to the transmission of a work or other subject-matter to subscribers to a diffusion service shall be read as a reference to the transmission of the work or other subject- matter in the course of a service of distributing broadcast or other matter (whether provided by the person operating the service or by other persons) over wires, or over other paths provided by a material substance, to the premises of subscribers to the service.

(2) For the purposes of this Act, where a work or other subject-matter is so transmitted:

(a)

the person operating the service shall be deemed to be the person causing the work or other subject- matter to be so transmitted; and

(b)

no person other than the person operating the service shall be deemed to be causing the work or other subject-matter to be so transmitted, whether or not he provides any facilities for the transmission.

(3) For the purposes of the application of this section, a service of distributing broadcast or other matter shall be disregarded where the service is only incidental to a business of keeping or letting premises at which persons reside or sleep, and is operated as part of the amenities provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests.

(4) A reference in this section to the person operating a service of distributing broadcast or other matter shall be read as a reference to the person who, in the agreements with subscribers to the service, undertakes to provide them with the service, whether he is the person who transmits the broadcast or other matter or not.

(5) Where a service of distributing matter over wires or over other paths provided by a material substance is only incidental to, or part of, a service of transmitting telegraphic or telephonic communications, a subscriber to the last-mentioned service shall be taken, for the purposes of this section, to be a subscriber to the first- mentioned service." ^[F21]

By s 10(1) of the Act, "broadcast" is defined to mean "transmit by wireless telegraphy to the public".

The factual background

APRA is, for relevant purposes, the owner of the copyright in certain works which include the lyrics and music of the songs "Tell Me a Story", "Change" and "Let It Be". For the purpose of testing the operation of s 31(1)(a)(iv) and (v), APRA and Telstra co- operated in presenting evidence relating to certain factual situations. The learned trial judge said ^[F22] :

"Those factual situations include (a) the provision of music on hold by some third party to a caller (eg one of the witnesses, Mr Bowden, telephoned Premier Cabs and heard 'Tell Me a Story' and 'Change'), (b) the provision of music on hold by a Telecom service centre to a caller (eg Mr Bowden called the Epping-Ryde Telecom office and listened to 'Let It Be'), (c) the provision of music on hold by Telecom to a caller in the course of a special music on hold service provided by Telecom to certain customers, and known as 'CustomNet', and (d) the transmission of music on hold through the mobile telephone network (eg a witness, Mr O'Neill, used a mobile phone to call the Australian Musical Copyright Owner's Society and heard three songs). In each case, the music is provided either by a device which plays recorded music, or by a radio."

Telstra holds a general telecommunications licence issued under the Telecommunications Act 1991 (Cth). When the Act was passed, Telstra owned most of the telephone lines and equipment used for the carriage of telecommunications in Australia. However, Telstra is no longer responsible for every line and piece of equipment. The Telecommunications Act declares that Telstra's responsibility for the lines and equipment of domestic customers ends at the first telephone socket and for those of commercial customers at the main distribution frame ^[F23] in the building of those customers. If the customer is a domestic customer, the customer is the owner or lessee of and is responsible for all equipment beyond the first socket. If the customer is a commercial customer, the customer is responsible for all equipment beyond the main distribution frame. The operation of the system was described by the learned trial judge as follows ^[F24] :

"In the case of a telephone call from an ordinary domestic telephone, when a person (the caller) picks up a telephone in order to make a call, the caller draws electro-magnetic current which is provided by the nearest telephone exchange. When the caller dials a number the dialling signal is sent back to the nearest exchange and is routed by that exchange through the network to the exchange nearest to the person being dialled (the recipient). If the recipient is engaged, then the signal does not pass beyond the exchange nearest to the recipient. An engaged signal is sent back to the caller. Where the caller is connected and begins to speak, the electro-magnetic current sent from the exchange to his telephone is modulated in response to his voice by a device located in the base of the handset. This modulated current returns to the nearest exchange where it is amplified and sent through the network to the recipient. The earpiece in the handset of the recipient contains a device which converts the electro-magnetic current into sound.

Where the communication emanates from a commercial telephone system, such as a PABX, the position is complicated by the fact that such systems use their own power source rather than power provided by the exchange. Thus, if a person uses a PABX, an electro- magnetic current is drawn from the electricity grid, is modulated by the person speaking, and is sent to the nearest exchange. There it is amplified and sent through the network to the recipient. Therefore, the recipient receives, at least in part, an electro-magnetic current which originates from the caller's PABX. In other cases, the recipient receives a current which originates from the caller's exchange and is modulated by the caller. It should be noted that where the caller and the recipient are reasonably close to one another, the modulated current may not necessarily be amplified. From a technical point of view, the playing of music on hold has the same effect as someone speaking. The electro- magnetic current originating in the PABX, for example, is modulated by the music source and this modulated current then moves through the network to the person listening to the music.

Many commercial telephone systems have the capacity to play music on hold. A music source, such as a compact disc player or radio, may be connected to such equipment. Some of the equipment to which music sources can be attached is supplied by Telecom. The remainder is supplied by other companies unrelated to Telecom. In its advertising for products with a music on hold facility, Telecom refers to the advantages of such a facility.

Music on hold is also played by Telecom at a number of its 'service centres' to callers who telephone the centres. The music at these centres is provided by means of a machine playing recorded music. Telecom also provides a music on hold facility to certain subscribers of a service called 'CustomNet'. Subscribers to CustomNet are provided with call handling capabilities equivalent to those available from a PABX system. Telephone handsets at the business premises of the subscribers are connected directly to a Telecom exchange. The subscribers pay a fee to receive the facilities of CustomNet. One optional feature available to subscribers is a music on hold facility which is provided by means of a compact disc player. When a person calls a subscriber to CustomNet and the subscriber is engaged, the caller's electro-magnetic current does not pass beyond the subscriber's nearest exchange, but is instead diverted to the music on hold facility until the subscriber's telephone line becomes available. What is important for present purposes is that the electro- magnetic current carrying music never passes to the premises of the subscriber, and a person operating a telephone at the subscriber's premises will never hear the music on hold. Instead, the current carrying the music moves directly from the Telecom exchange to the caller."

Section 26 of the Act

Section 26 defines, for the purpose of s 31(1)(a)(v), what constitutes a diffusion service, what is involved in transmitting a work or other subject-matter to a diffusion service, the person who causes that work or subject-matter to be transmitted by a diffusion service, and the subscribers to that service.

By necessary implication, if not express words, s 26(1) identifies a diffusion service as "a service of distributing broadcast or other matter ... over wires, or over other paths provided by a material substance, to the premises of subscribers to the service." ^[F25] Central to the concept of a diffusion service is the distribution of "broadcast or other matter". In s 26 "broadcast" is used as an adjective while in s 10(1) it is defined as a verb. But there can be no doubt that the definition in s 10(1) applies and that the phrase "broadcast ... matter" in s 26(1) refers to matter that has been, is being, or will be transmitted by wireless telegraphy to the public ^[F26] . Section 10(1) defines "wireless telegraphy" as "the emitting or receiving, otherwise than over a path that is provided by a material substance , of electromagnetic energy" (emphasis added). As Professor Ricketson points out in his work on the Berne Convention ^[F27] :

"Essentially, [the term 'broadcasting'] refers to the transmission of sounds or images, or both, by electromagnetic waves without any artificial means of guidance or support (such as a wire or cable), for the purpose of enabling reception of the sounds or images which are transmitted by members of the general public. However, there are now many ways, apart from broadcasting in its pure sense, in which sounds and images can be transmitted to the final listener or viewer. For example, it has long been possible to do this with the aid of an artificial conductor, such as a wire or cable, and the range of conductors has now expanded enormously, even including such intangible means as laser beams. These methods can also be used in combination with broadcasts, for example, as a means of further diffusion once a broadcast has been received." (footnotes omitted)

The reference to wireless telegraphy in the definition of "broadcast" in s 10(1), however, makes it clear that "broadcasting" in s 26(1) is used "in its pure sense" and that it does not refer to matter that is sent by wire or cable or over a path that is provided by a material substance. As the Copyright Convergence Group reported to the relevant Minister ^[F28] :

"Section 10 of the Copyright Act defines 'broadcast' as to 'transmit by wireless telegraphy to the public'. This excludes transmissions over wires or other material paths. This approach is in accordance with the provisions of the international copyright conventions to which Australia is party, and in particular the Berne Convention. These conventions distinguish between wired and wireless transmissions and only recognise wireless transmissions as broadcasts. However, the CCG considers that the separation of what may be the same activities by a service provider into two separate categories of protection based on the means of delivery of the service is no longer equitable in today's communications environment, and that this anomalous distinction should be removed from the Act."

In s 26(1), therefore, the phrase "broadcast ... matter" means matter which is transmitted by wireless telegraphy to the public other than by a service "over wires, or over other paths provided by a material substance".

It necessarily follows that, when s 26(1) refers to "a service of distributing broadcast ... matter ... over wires" etc, it is referring to the relaying of matter to subscribers which has been, is being, or will be transmitted to the public by electro- magnetic waves without any artificial means of support such as wire or cable. When s 26 was enacted, it is likely that the relaying of broadcast material in this sense was perceived as the type of service in respect of which the section would have its largest application. It also seems likely that the relaying of material already broadcast, being, or to be broadcast was the principal activity which the drafters of Art 11bis (1) of the Berne Convention ^[F29] , the primary source of s 26, had in mind when Art 11bis (1) was drafted and revised. Installations which received broadcasts, amplified them, and sent them by cable to individual subscribers seem to have been common in Europe at the relevant times in the evolution of the Berne Convention ^[F30] . Mr Catterns, QC, who appears for APRA, contends that retransmission of broadcasts is also "a very important aspect" of s 26. He referred to "community antennas" in areas of Sydney, which relay television broadcasts by means of "wire" to houses with poor television reception, as constituting a diffusion service to which people could subscribe.

The music that was sent over the telephone wires in this case was not broadcast matter within the definition in s 26(1) of the Act. Even if the music was transmitted to the telephone system by means that would answer the description "wireless telegraphy" within s 10(1), it was not broadcast "to the public". The music is not heard until it is transmitted to the caller and that occurs only because of the transmission of electro-magnetic signals over the path provided by a material substance, viz, the telephone line.

The meaning of "other matter" in s 26(1)

Section 26(1) also refers to "a service of distributing ... other matter ... over wires" etc. Are the words "other matter" wide enough to cover a case where music is transmitted to a telephone caller, as occurred in the present case? Certainly, they are wide enough to include every combination of words, signs, symbols, sounds or pictures, whatever their source. But the expression "other matter" cannot be at large. Unless the expression is given a restricted meaning, the term "broadcast ... matter" in s 26(1) is effectively redundant.

Courts often avoid reading down general words in an instrument when they follow the enumeration of a class or classes of persons or things unless "in the particular case the true construction of the instrument requires you to conclude that they are intended to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before." ^[F31] Nevertheless, there are numerous reported cases where the courts have read the word "other" to mean "other like" ^[F32] even when, as here, the specified genus itself comprises only one category ^[F33] . In Stag Line Ltd v. Foscolo, Mango & Co Ltd ^[F34] , the House of Lords was called on to interpret a charterparty which gave liberty to the vessel "to call at any ports in any order, for bunkering or other purposes". Lord Buckmaster said ^[F35] :

"The word 'bunkering' must have some demonstrative and limiting effect, and the phrase 'or other purposes' following it cannot be so construed as to disregard the effect of the first example and assume that any purpose is thereby permitted. If that were so, the word 'bunkering' might be left out."

In my view, the preferred construction of s 26(1) is that "other matter" must be read ejusdem generis with "broadcast ... matter". Unless that is done, the latter expression is effectively redundant, notwithstanding that the term "broadcast" is a key term in Pt III of the Act. In s 26(1) the term "broadcast" must have a limiting effect. It would be surprising if the legislature, having used this key term to limit matters that came within the section, then intended to make it superfluous by using the expression "other matter".

A much better construction of the expression "broadcast or other matter" in s 26(1) is that it refers to matter that is transmitted to the public by wireless telegraphy or some like means involving the transmission of signals, sounds or images by electro-magnetic energy but without any means of guidance by wires or other paths provided by a material substance ^[F36] . On that hypothesis, s 26(1) deals with the further transmission of such matter by means of wires or other paths provided by material substance to the premises of subscribers to a service. The words in parenthesis in s 26(1) "distributing broadcast or other matter (whether provided by the person operating the service or by other persons)" support this construction.

The terms of Art 11 bis (1) of the Berne Convention also support this construction. Art 11 bis (1) provides ^[F37] :

"(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing:

(i)

the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;

(ii)

any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one;

(iii)

the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work."

Article 11 bis (1)(ii) is the primary source of s 31(1)(a)(v) and s 26 of the Act. In his useful commentary on Art 11 bis (1)(ii), Professor Ricketson states ^[F38] :

"Article 11 bis (1)(ii) deals only with the distribution of broadcast programmes, and does this under the same condition that applies to rebroadcasting: a separate authorisation for this secondary utilisation of a broadcast is only required where the 'communication by wire' is done by an organisation other than the original one. In the same way, no question as to whether this communication is made to a 'new public' arises, so long as this is a communication to the public. In the case of the original organisation, therefore, it is free to distribute its broadcast programmes by cable without having to seek further permission. This 'licence' can be viewed in several ways. On the one hand, it enables a broadcasting organisation to carry out its broadcasting effectively, particularly in areas where direct reception of programmes is difficult and would involve the broadcasting organisation in additional expense if it had to rely on broadcasting alone. In this sense, cable distribution can be assimilated to rebroadcasting. On the other hand, the character of the act, involving as it does distribution through some form of artificial conductor, is qualitatively different from broadcasting, and the question arises as to whether it should be treated as a distinct act of dissemination requiring the authorisation of the copyright owner. It is for this reason, that some national laws treat the acts of broadcasting and cable distribution as distinct acts, even where the cable distribution is of programmes which have been broadcast by the same organisation." (footnotes omitted, emphasis added)

In a footnote to this passage, the learned author refers to s 31(1)(a)(v) of the Act as an example of a national law that has treated broadcasting and cable distribution as distinct acts.

Mr Catterns, QC contends that the phrase "broadcast or other matter" "really could not be broader". He submits:

"It is broader than the notion of the UK Act 'programmes' ... on the one hand, and it is also broader than the early Wireless Telegraphy Act ... We submit that the phrase is a broad phrase certainly apt to cover the sort of communications that we are involved in here." ^[F39]

But, for the reasons that I have given, the expression "other matter" in s 26(1) is not at large. No doubt it includes every conceivable signal, sound or image, whether or not it is contained in a programme. But not every signal, sound or image is "broadcast matter". For the purposes of s 26, such signals, sounds or images are "broadcast ... matter" only when they have been, are being, or will be conveyed to the public by electro-magnetic waves without any support from wires, cables or other paths provided by a material substance.

There can be no doubt that music which is transmitted can be "broadcast or other matter". But if the construction that I have placed on that composite expression is correct, the transmission of music by itself is not enough to fall within the expression. Once the view is accepted that "other matter" is describing matter that is analogous to broadcast matter, it seems to follow that the matter - whether it be music, news, stock exchange prices or the like - must possess a special quality when it is distributed "over wires, or over other paths provided by a material substance". In the case of broadcast matter, that quality is that it is matter that has been, is being, or will be transmitted "by wireless telegraphy to the public". In the case of "other matter", that quality is that it is matter which has been, is being, or will be transmitted to the public by similar means. That is to say, the matter must be transmitted to the public by electro-magnetic energy but without guidance or support from wires, cables, or other paths provided by a material substance.

It follows that, with great respect, I differ from the view expressed by Burchett J in the Full Court when his Honour said ^[F40] :

"The source of the music, whether a radio set, or record, tape or compact disc, is not of significance for the application of s 26."

Section 26(1) also makes it clear that central to the idea of a diffusion service is the distribution of a common pool of "broadcast or other matter" which will be shared by a number of subscribers. The use of the term "distributing" implies that what the subscriber receives is the same "broadcast or other matter" that other subscribers receive. A diffusion service therefore is a service in which matter is distributed to a number of persons. The section is concerned with a service of distributing matter from a common source to a number of premises controlled or occupied by subscribers to the service. Of course, in some cases only one subscriber may in fact receive the service. In that case, the service will not be within the definition in s 26(1) unless other persons have the opportunity to share in the distribution of the matter. The right of subscribers to have access to the broadcast or other material is therefore central to the operation of s 26. An agreement that a subscriber should receive matter that was not accessible by any other person would not in my view be a diffusion service within the meaning of s 26(1). The subscribers may receive the material at different times. But each subscriber must have a right of access to the common material. Further support for this construction of the term "distributing" arises from the construction that I have placed on the expression "broadcast or other matter". That construction requires that the matter which is distributed be matter that has been, is being, or will be transmitted to the public.

Relying on the French translation of the Berne Convention, Mr Catterns, QC submits that the term "distributing" in s 26 means transmission even though the English version of the Convention uses the term "distributing". Professor Ricketson also suggests that the English translation should be given the same meaning as the French translation of the Convention ^[F41] . This argument has considerable force. If the Act had given the relevant parts of the Convention the force of law, I would be inclined to uphold it. But the Act has not done that. Instead, it has relied on the English translation in creating the domestic law. Because the legislature has used the English version, those words should be given their ordinary English meaning.

Plainly, s 26(1) distinguishes between the transmission of copyright works or other subject-matter and the service of distributing broadcast or other matter. It may often be the case, however, particularly in the case of cable television, that the service of distributing broadcast or other matter will consist almost entirely of distributing works or other subject-matter that are the subject of copyright. Nevertheless, for the purposes of the sub-section, a distinction exists between the service of distributing "broadcast or other matter" and the transmission of the "work or other subject-matter". The former is the collective name for all the material which is distributed as part of the service whether or not it is the subject of copyright.

Sub-sections (2), (3), (4) and (5) of s 26 expand and restrict the definition of diffusion service in s 26(1). Importantly, they define the person who, for the purposes of s 31(1)(a)(v) of the Act, causes a work to be transmitted to subscribers to a diffusion service. Sections 26(2) and (4) combine to define the person who is responsible for the transmission of the material. Section 26(2) provides that, for the purposes of the Act, the person operating the service which transmits a work or other subject-matter "shall be deemed to be the person causing the work or other subject-matter to be so transmitted". That sub- section goes on to provide that no other person shall be deemed to cause the work or other subject-matter to be transmitted. To determine who is the person operating the service for the purpose of sub-s (2), it is necessary to refer to sub-s (4). Sub-section (4) provides that a person operates a service when that person under an agreement with subscribers to the service undertakes to provide them with the service whether or not he or she is the person who transmits the broadcast or other matter.

The meaning of s 26(5)

The provisions of s 26(5) are curious and somewhat obscure. The words "a service of distributing matter" in s 26(5) refer back to the service referred to in s 26(1). That is to say, they refer back to the service of distributing broadcast or other matter. Mr Catterns, QC, accepts this is so. If circumstances exist so as to attract the operation of sub-s (5), that sub-section defines the subscriber to the diffusion service. So much is common ground between the parties. However, they disagree as to what else it does.

Where the service of distributing broadcast or other matter is only incidental to or part of a service of transmitting telegraphic or telephonic communications, the subscriber to the telegraphic or telephonic communication service is also deemed to be a subscriber to the service of distributing broadcast or other matter. But nothing in sub-s (5) makes the person providing the telegraphic or telephonic communication service the person operating the service for the purpose of s 26(2). By s 26(4) the person who operates the service is the person who, by agreement with the subscribers to the service, undertakes to provide them with the service of distributing broadcast or other matter. That makes it very difficult to give sub-s (5) an operation independent of s 26(1).

The preferred construction of s 26(5), therefore, is that the "service of distributing matter over wires" etc in the opening words of that sub-section is a reference to the "service of distributing broadcast or other matter" referred to in s 26(1). However, s 26(1) does not define the provider of the service. Nor does s 26(1) define, for the purpose of s 31(1)(a)(v), who is the person who "cause[s] the work to be transmitted to subscribers to a diffusion service" - which is after all the main reason for enacting s 26. That function is fulfilled by s 26(2) and (4).

The person operating the diffusion service

Sections 26(2), (4) and 199(4) give content to s 31(1)(a)(v) of the Act which defines copyright in relation to a work as including the exclusive right to cause a work to be transmitted to the subscribers to a diffusion service. Section 26(2) declares that the person operating the diffusion service referred to in s 26(1) "shall be deemed to be the person causing the work or other subject-matter to be so transmitted" and that no other person "shall be deemed to be causing the work or other subject-matter to be so transmitted, whether or not he provides any facilities for the transmission " (emphasis added). Section 26(2) therefore has the effect of exempting the person who provides the facilities for further transmission of the "broadcast or other matter" from liability for the wire or cable distribution of "broadcast or other matter" unless that person is the person who operates the diffusion service. And by s 26(4), the person who operates the diffusion service is the person "who, in the agreements with subscribers to the service, undertakes to provide them with the service, whether he is the person who transmits the broadcast or other matter or not " (emphasis added). Section 199(4) reinforces this protection of the person who merely provides the means for further transmitting broadcast or other matter by declaring that a person who, by the reception of an authorised television or sound broadcast, causes a copyright work to be transmitted to subscribers to a diffusion service is to be treated for the purpose of infringement proceedings as having a licence from the copyright owner to cause the work to be so transmitted. Sections 26(2), (4) and 199(4) ensure therefore that the only persons who will be liable for breach of s 31(1)(a)(v) are those persons who undertake to subscribers to further transmit material which has been, is being, or will be transmitted to the public by wireless telegraphy or similar means.

Telstra did not breach s 31(1)(a)(v)

Because the music on hold played to callers had not been transmitted to the public by wireless telegraphy or similar means before being transmitted to any subscribers to a diffusion service, it was not "broadcast or other matter" for the purpose of s 26(1). On this ground alone, the present appeal could succeed. But Telstra did not rely on this point. Moreover, both Gummow J and the Full Court acted on the assumption that music on hold was at least "other matter" for the purpose of s 26(1). It is true that Mr Catterns, QC, for APRA, submitted that the expression "broadcast or other matter" was wider than the equivalent provision in the Copyright Act 1956 (UK) and was certainly wide enough to cover the music played in this case. But this was a passing reference. If there had been an appeal on this point, he would certainly have submitted a more detailed argument. As a result of the way the case has been conducted, therefore, it would be inappropriate to allow the appeal on this point.

In my view, however, the appeal on the diffusion right issue must be allowed on the ground that, within the meaning of s 26(1) and (4), Telstra was not a person who by agreement undertook to provide subscribers with "a service of distributing broadcast or other matter", whatever meaning is given to the expression "broadcast or other matter". There is no doubt that a person who provides a telegraphic or telephonic service may at the same time provide a distribution service for the purpose of s 26(1). But as s 26(2) and (4) make clear, the only person who causes "the work or other subject-matter to be so transmitted" for the purpose of ss 26 and 31(1)(a)(v) is the person who has entered into agreements with subscribers and undertaken to provide them with a service of "distributing broadcast or other matter". Where the circumstances of a case attract the operation of s 26(5), the subscriber to the telegraphic or telephonic service is taken to be the person who receives the copyright work that is distributed as part of the broadcast or other matter. But s 26(5) does not deem the provider of the telegraphic or telephonic service to be the person causing the work to be transmitted. Depending on the facts of the case, that sub-section may create a statutory fiction ^[F42] . But it does no more than make the subscriber to the telegraphic or telephonic service the subscriber to the diffusion service. I can see no ground for concluding that, where s 26(5) operates, it not merely deems the subscriber to the telegraphic or telephonic service to be a subscriber to the diffusion service but also deems the provider of the telegraphic or telephonic service to be the person who by agreement undertakes to provide the subscriber with a service of "distributing broadcast or other matter". A deeming provision must be read strictly. It is "improper ... to extend by implication the express application of such a statutory fiction." ^[F43]

Accordingly, in my opinion, the appeal should be allowed on the diffusion right issue.

The broadcast right - s 31(1)(a)(iv)

I agree for the reasons given by Dawson and Gaudron JJ that the appeal on the broadcast right issue must fail.

Order

I would allow Telstra's appeal on the diffusion right issue but reject its appeal on the broadcast right issue.