May 2009

Copyright in TV schedules: The High Court Decision in IceTV and Nine Network

In one of the most significant copyright decisions in years, on 22 April the High Court overturned the decision of the Full Federal Court in IceTV v Nine Network resetting the rules for copyright in compilations.

This decision brings to a close a three year legal battle between Australia's first commercial television network and the fledgling Australian electronic program guide provider who supplies its Ice Guide to its customers by subscription. 

The facts

At the heart of the legal battle was the question, whether the process of preparing and publishing the Ice Guide infringed Nine's copyright in its Weekly Schedule. IceTV used information from an earlier Ice Guide to predict the future scheduled program which was then checked against publicly available guides.  Nine's Weekly Schedule was prepared by a number of its staff and the information was extracted in a number of different formats from its data base. The Weekly Schedule, itself a compilation, is then sent to an Aggregator who extracts that information and assembles it alongside similar information from other free to air networks. The Aggregators then publish its guide on-line and in print media. The Ice Guide schedule was then compared to Nine's TV guide published by Aggregators and where necessary it was adjusted.  Nine claimed that the referencing to the Aggregators' guides infringed its copyright.

Nine contended that IceTV infringed its copyright by taking that part of the time and title information (from the Aggregator guides) and including it in the Ice Guide which amounted to a reproduction in a material form of a substantial part of the copyright work ? Nine's Weekly Schedule (which was supplied to the Aggregator).  Nine said that substantial work and cost was expended when preparing the time and title for the Weekly Schedule.

IceTV denied it had reproduced in a material form, a substantial part of any Weekly Schedule and denied that a reproduction from the Aggregator Guides was a reproduction from the Weekly Schedule.

The decisions

The primary judge (Justice Bennett) and the Full Court of the Federal Court (Chief Justice Black, Sackville and Lindgren JJ) approached the question of whether IceTV had reproduced a substantial part of any Weekly Schedule by identifying the skill and labour which was expended to create the Weekly Schedule, and then asked whether IceTV had taken Nine's skill and labour.  The primary judge and the Full Court arrived at opposite conclusions ? the primary judge found that skill and labour in the time and title was not relevant, consequently there was no reproduction in a substantial part.  Her Honour did say that the referencing was an indirect copying but did not amount to a substantial reproduction.  The Full Court considered that the preparatory work by Nine's staff to identify time and title was relevant skill and labour and that it was a reproduction in a substantial way.

The High Court confirmed the long standing principle that copyright cannot protect facts or information.  It protects the particular form of expression of the information (the words, figures and symbols in which the information is expressed), including the selection and arrangement of that information.  Some facts will remain inseparable from their expression so that copyright can never exist in them alone.

The High Court found that the underlying purpose of Nine's preparatory work was performed to determine when a program was to be shown at a particular time so as to attract viewers and therefore command commercial revenue.  That process was not to be considered as skill and labour for copyright protection.  The time and title information alone lacked creative spark to be cloaked with copyright protection. 

Implications

The decision has far reaching implications.  It affects any business that utilises factual information that is arranged to create a compilation of work, either to call in to question the ability to claim copyright protection over the compilation, or by giving businesses the freedom to use factual information referenced from a compilation.

Simply because you expend considerable time and effort for commercial purposes in arranging information in a compilation does not of itself cloak that expression with copyright protection. If copyright does not exist there is nothing to stop the use of that information.

It is important to identify the work in which copyright exists.  It is not possible to select part of the information contained in the work and claim copyright in that isolated part.  It is necessary to base copyright on the whole work.