International Law

Ice TV wins High Court appeal

In IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, the High Court has decided (6-0) that IceTV's use of some of Nine Network's time and title information obtained from aggregated program guides did not infringe Nine's copyright in its weekly schedules. The High Court restored the trial judge's original decision (see here and here).

The court was aware of the commercial implications.

Here's what French CJ, Crennan and Kiefel JJ (who delivered a separate judgment from Gummow, Hayne and Heydon JJ) said:

So as to indicate that the time and title information alleged to have been reproduced did not form a large part of a Weekly Schedule, the primary judge referred to the copying of "slivers of information". However, in order to assess whether material copied is a substantial part of an original literary work, it is necessary to consider not only the extent of what is copied: the quality of what is copied is critical.

This principle has a long provenance and it is particularly apposite when considering a compilation. Some compilations are no more than a selection or arrangement of facts or information already in the public domain. When the particular form of expression contains facts and information, it is not helpful to refer to "the rough practical test that what is worth copying is prima facie worth protecting". To take an example, facts are obviously worth copying for purposes such as a narrative work of history which depends on secondary sources. It is equally unhelpful to refer to the "commercial value" of the information, because that directs attention to the information itself rather than to the particular form of expression.

It is often said that questions of whether a substantial part has been copied are questions of fact and degree. However, a factor critical to the assessment of the quality of what is copied is the "originality" of the part which is copied....

Rewarding skill and labour in respect of compilations without any real consideration of the productive effort directed to coming up with a particular form of expression of information can lead to error. The error is of a kind which might enable copyright law to be employed to achieve anti-competitive behaviour of a sort not contemplated by the balance struck in the Act between the rights of authors and the entitlements of the reading public. The Act mandates an inquiry into the substantiality of the part of the work which is reproduced. A critical question is the degree of originality of the particular form of expression of the part. Consideration of the skill and labour expended by the author of a work may assist in addressing that question: that the creation of a work required skill and labour may indicate that the particular form of expression adopted was highly original. However, focussing on the "appropriation" of the author's skill and labour must not be allowed to distract from the inquiry mandated by the Act. To put aside the particular form of expression can cause difficulties, as evidenced by Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd.

It is not seriously in dispute that skill and labour was expended on producing the Weekly Schedules (and the Nine Database). The evidence disclosed considerable skill and labour involved in programming decisions. There was a contest about whether it mattered if some of the skill and labour expended was directed to business considerations. Plainly, the skill and labour was highly relevant to matters such as advertising revenue. It is not difficult to understand that questions of the timing of particular broadcasts are crucial for advertising revenues. The fact that business considerations inform the decision to adopt a particular form of expression will not necessarily detract from the originality of that form of expression.

However, the critical question is whether skill and labour was directed to the particular form of expression of the time and title information, including its chronological arrangement. The skill and labour devoted by Nine's employees to programming decisions was not directed to the originality of the particular form of expression of the time and title information. The level of skill and labour required to express the time and title information was minimal. That is not surprising, given that, as explained above, the particular form of expression of the time and title information is essentially dictated by the nature of that information.

Full post as published by Australian Regulatory Compliance Review on April 22, 2009 (boomark / email).