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What do you need to do?If you are an owner of compilations or databases you should seek advice regarding the best means of protecting them. If you are a user of compilations you should seek advice to ensure that your use does not infringe copyright
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Natalie Hickey
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Maurice Gonsalves
Partner
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Natalie Hickey
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Brisbane
John Swinson
The High Court has given a new lease of life to electronic programme guides (EPGs) in the recent case of IceTV Pty Ltd v Nine Network Pty Ltd. In a 6:0 decision, the High Court restored the first instance decision of Bennett J and found that IceTV did not reproduce a “substantial part” of Nine’s copyright work by updating its EPG from time and title information sourced initially from Nine’s weekly schedule.
The decision means that producers of EPGs are able to use “slivers” of information to update their independently-developed products, without risking copyright infringement.
We have previously reported the Federal Court and Full Federal Court decisions. The High Court delivered two separate judgments (the first from French CJ, Crennan and Kiefel JJ, and the second from Gummow, Hayne and Heydon JJ).
Factual background
IceTV provides a subscription based electronic television program guide known as the “IceGuide”. The IceTV guide was sourced from templates of the daily programming of Nine, Ten and Seven prepared by an employee of IceTV who watched television continuously for a period of weeks (which he described as “torture”) and wrote down time and title information of programs broadcast in that period. The templates helped predict programs to be broadcast for the purposes of the IceGuide. The IceGuide itself was corrected from week-to-week by reference to the aggregated guides, which included Nine’s weekly schedule.
The Nine Network argued before a single Judge of the Federal Court that IceTV’s reproduction of time and title information reproduced a substantial part of the weekly schedules prepared by Nine’s staff. On that basis Nine argued that IceTV had infringed Nine’s copyright in the weekly schedule. The trial judge disagreed.
On appeal, the Full Court of the Federal Court allowed the appeal.
After granting IceTV special leave to appeal against the Full Court’s decision, the High Court allowed IceTV’s appeal. The High Court determined that IceTV’s use of time and title information in the IceGuide did not infringe Nine’s copyright in either the weekly schedule or the database from which the weekly schedule was produced.
The High Court’s approach
Whilst there was agreement about the orders made, the judgments adopted different routes to the conclusion that IceTV did not infringe:
- Three judges (French CJ, Crennan and Kiefel JJ) considered that the expression of time and title information contained little originality so that the time and title information used by IceTV could not be regarded as a substantial part of the weekly schedule or of Nine’s database.
- The other three judges (Gummow, Hayne and Heydon JJ) considered that the originality of Nine’s weekly schedule lay not in the time and title information but rather in its selection and presentation together with additional program information and synopses. They found that IceTV did not reproduce a substantial part of the weekly schedule or Nine database. Only small amounts were copied, and the quality of the part taken was not regarded as substantial because Nine’s work in setting down program titles in particular time slots required only modest skill and labour.
General application?
The case is important because the High Court has now commenced considering the scope of copyright protection for compilations in Australia.
However, the IceTV case concerned infringement, not copyright subsistence. The facts in this case relevant to infringement were very specific. Facts regarding infringement of copyright in compilations can differ considerably.