Image: Author (via Dalle-E)
Confiscation is a strong word, but I can’t think of any more appropriate term to describe what has just happened in Australia regarding the copyright of film footage taken by two employees (Chris Delforce and Harley McDonald-Eckersall) of Farm Transparency International (FTI). FTI is an animal rights organization well known for its crusade against animal cruelty in Australia. The two illegally trespassed into the slaughterhouse facilities of Game Meats Company (GMC) and then installed pinhole cameras in the ceilings of the abattoirs. The resulting footage was to be used to further expose industry practices which FTI claims constitute animal abuse. It was sent to the Department of Agriculture, Food and Fisheries (DAFF) who forwarded the complaint to GMC, which triggered GMC’s lawsuit. It was also sent to Seven Network, who decided not to show it after the lawsuit was launched.
The Department (DAFF) declined to prosecute the company, although in court a GMC employee is reported as describing the alleged abuse as “a brief aberration … just a small glitch in a process”. The confrontation between FTI and the meat industry has been ongoing for a number of years, and the industry has employed various tactics to combat FTI’s use of film footage to expose slaughterhouse practices. Keeping the public’s eye away from how their lamb chop, hamburger or pork sausage got from farm to fork is one way of avoiding consumer pushback against the distasteful but necessary process of animal slaughtering. Such footage is not for the faint-hearted.
However, this blog post is not about the rights or wrongs of eating meat or animal slaughtering practices; it is about copyright. And, believe it or not, copyright is very relevant to this controversial topic.
Recall that copyright is established when an original work is created. There is no need for registration or validation, but the work must be fixed in some form (e.g. a book, image or film) and normally must have at least some element of creativity (although in Australia originality is not required for films). For films, holding copyright confers certain exclusive rights, such as the right to reproduce or make a copy, to have the film screened in public, and to communicate the film to the public through means such as broadcasting, streaming, or downloading. Once copyright is established, it lasts a long time (the life of the rights-holder(s) plus 70 years in Australia), and is impossible to renounce. Holders of copyright can issue various forms of Creative Commons licences authorizing use under various scenarios, but the copyright still exists. It is very “sticky”. In Australia, the copyright in films is normally held by the person who is the maker of the film, that is, the person who makes the arrangements for the film to be made. This could be the director, or the person who commissions the film. If a company commissions a film, the company could be the rights-holder. It could also be the person doing the filming, if it is a small-scale production and the person doing the filming is also the producer. The Australian Copyright Council has an excellent background paper outlining all the ins and outs of copyright ownership in films. In the case under discussion, the copyright owner was FTI. While the issue of who has copyright in a film can be complicated, one thing is very clear. The person being filmed does not own the copyright, any more than a person receiving a letter owns the copyright in that letter. It belongs to the author. But the Federal Court of Australia has just stood this principle on its head.
In August the full Federal Court upheld the appeal of Game Meats Company (GMC) against a lower court ruling. The lower court had concluded that while FTI had trespassed on GMC’s property (and was assessed significant damages for having done so), the filming that had taken place was not held in trust for the owner of the property, i.e. GMC. This somewhat convoluted wording meant that Game Meats did not own the copyright in the film and that the film was not made on its behalf. (This seems obvious since it was FTI doing the filming, but that was the wording of the decision). However, the Federal appeal court reversed this decision and awarded the copyright to GMC in the form of a “constructive trust”, to be maintained in force until such time as the copyright in the film was compulsorily assigned to it. As part of the decision, FTI was required to execute an assignment in writing of the copyright in the images and footage to Game Meats and permanently delete all copies of the images in its possession and control. In other words, FTI was required to turn over its copyright to the entity that it had filmed, thus ensuring that the new owner of the footage would ensure it never saw the light of day. In short, FTI’s copyright was confiscated.
As far as I am aware, this is the first time that the legal concept of “constructive trust” has ever been applied to a copyright case, in Australia or anywhere else. So, what is a constructive trust? There are many definitions, but here is one that seems to capture the essence quite well;
“A constructive trust is imposed by law to remedy a situation in which someone has been unfairly deprived of property or wronged through misconduct such as fraud, misrepresentation, or a breach of fiduciary duty in relation to specific property or assets. This type of trust comes into existence to uphold equitable property interests, regardless of whether the parties intended to create a trust relationship.”
There are two key elements here, (1) there must have been some misconduct committed by the defendant and (2) restoration of “equity” demands that the property in question be transferred to the wronged party. It is often used in disputes over estates where one party argues they have been unjustly deprived of certain proceeds of the estate to which they had contributed for many years. It was not designed to deal with copyright disputes but that is how it has been used by Game Meats Company, now upheld by the full appeal court. This is an unfortunate precedent.
This case could lead to a very slippery slope regarding freedom of expression and freedom of the press. Hijacking copyright to stifle press coverage could easily result in unintended consequences. GMC, now the assignee of the copyright will, of course, not sanction any release of the footage. Any media outlet that does so could face severe legal consequences. Moreover, this decision sends a very threatening message to investigative journalists, photographers, film makers and others. Could the constructive trust ruling be expanded in future to impede researchers who were “virtually trespassing” by using drones or telephoto lenses? There are privacy and defamation laws to deal with this sort of situation, but what if the door is now open to seizing the copyright? What about surreptitious footage shot by documentary filmmakers or investigative TV reporters? The public interest demands that journalism be given some leeway to pursue investigations and shed light on contentious issues. It is self-evident that entities being investigated are not going to facilitate filming of their activities.
The Australian weekly, the Saturday Paper, quotes Macquarie University journalism professor, Peter Greste, who is also executive director of the Alliance for Journalists’ Freedom, saying the case “gives all sorts of subjects of media investigation an opportunity to threaten legal action and shut down otherwise important and legitimate journalistic investigations”. From a legal perspective, the appeal court’s ruling appears to be on shaky grounds. It is based on some non-binding opinion (obiter) in a 2001 case in which the Australian Broadcasting Corporation (ABC) successfully argued against an injunction sought by Lenah Game Meats, an opossum meat processer, that had sought to prevent ABC from showing footage the broadcaster had obtained from an anonymous source. ABC had subsequently learned its source had obtained the footage illegally. Apart from questionable legal precedence cited by the Federal Court in its current ruling, the decision itself constitutes a significant threat to responsible freedom of expression and freedom of the press at a time when both are under attack.
While privacy and prohibition against trespassing are important, there are other ways to deal with content obtained through illegal means such as legislation already used against FTI in New South Wales, the Surveillance Devices Act, or by seeking an injunction against publication because of “irreparable harm”. Undermining the Copyright Act and the fundamental principles of copyright is not the way to go. Australia has always had a strong tradition of journalistic freedom and a culture of encouraging creativity. The court’s FTI decision runs against that tradition and is a retrograde step. Let’s hope it is appealed–and subsequently overturned, reserving copyright law for the purposes for which it was intended.
© Hugh Stephens 2025. All Rights Reserved
Update: On December 4, 2025 the High Court of Australia granted leave for FTI to appeal the decision of the Federal Court of Australia.
