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The Federal Court has considered the scope of compilation copyright in a recent case regarding the creation and dissemination of electronic television program schedules. The decision is important as it provides guidance on the scope of copyright subsisting in different types of compilations. It also considers how to determine whether a substantial part of a compilation has been reproduced.
Impact of the decision
The decision confirms the following points:
- The copyright in a compilation attaches specifically to the particular skill and labour involved in creating the copyright work.
- The form and content of a work and how it was created are relevant to assessing infringement of copyright in a compilation.
- Independently arriving at facts contained in a compilation will not infringe the copyright in that work.
Background
Nine Network instituted copyright infringement proceedings against IceTV in May 2006. It alleged that subscription-based electronic television schedules produced by Ice constituted an almost 100% reproduction of Nine’s own program schedules.
Nine claimed that Ice appropriated its skill and labour of authorship by reproducing program time, title and broadcast information from publicly available television guides (eg. TV Week and Yahoo!7 TV Guide on the internet), which incorporate Nine’s program schedules.
Nine’s copyright work
The Court held that Nine’s copyright work was a weekly schedule provided to third parties so they could produce publicly available television guides. These television guides were published in magazines and on the internet.
The weekly schedule was a product of Nine’s skill and labour in:
- Selecting particular television programs to screen at particular times in order to increase its viewers.
- Presenting and arranging program and broadcast information in the particular format of the weekly schedule.
Nine’s copyright existed in the weekly schedule as a whole compilation and not in the individual program information. Nine could not claim copyright in the components as separate compilations.
Late change notices, provided to publishers when last minute changes were made to Nine’s programming, were not part of the weekly schedule and therefore, were not part of the copyright-protected compilation.
The Ice TV schedules
The Judge found that Ice had independently created template schedules in 2004 by watching television for a three week period (described by the relevant witness as “torture”!) and recording the broadcast information of the programs screened. The template schedules were then used by Ice staff to predict Nine’s future programming, which lead to the creation of predicted schedules.
Ice then compared the predicted schedules with published television guides and where necessary, updated the Ice schedules to reflect weekly programming variations or late changes in Nine’s programming.
Do the Ice TV schedules infringe nine’s copyright?
The central issue on infringement was whether Ice had reproduced a substantial part of Nine’s copyright work.
Justice Bennett stated, “This is a question of fact and degree to be tested by reference to the similarity between the works, the extent of actual copying, the quality and originality of what is taken and the interest which the copyright protects. Each case turns on its own facts.”
Nine relied heavily on Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002), which found copyright in Telstra’s White Pages telephone directories. However, the Court held that where a telephone directory allows for only one logical method of arranging factual information, a television schedule can be expressed and arranged in a number of ways. By predicting the schedules Ice independently arrived at most of the facts common to Ice’s electronic schedules and Nine’s weekly schedules.
Ice did not copy the particular format of Nine’s weekly schedules, nor did it take Nine’s skill and labour in selecting and scheduling its programs. Late change notices themselves were not included in Nine’s weekly schedules, nor were they accessed by Ice.
Although Ice did take “slivers” of program information (times and titles) in updating its predicted schedules, the Court found that these “slivers” did not amount to reproduction of a substantial part of the weekly schedules. Therefore, Ice did not infringe Nine’s copyright.