Thursday, May 08, 2008


There's been an interesting copyright case going on in Australia, Nine Network Australia Pty Ltd v Ice TV Pty Ltd., dealing with copyright protection in compilations of facts. Under Australian law, copyright can effectively subsist in a compilation of factual information if enought effort is put into collecting, verifying, recording and assembling the data. So there's a kind of "sweat of the brow" test. This is a much broader protection that even the EU database directive provides; and such compilations are not protected under US law, according to the defintive US Supreme Court case Feist Publications Inc. v Rural Telephone Service Co., 499 U.S. 340 (1991), dealing with extent of copyright protection available to telephone directory white pages.
"The basic facts are these: Ice TV compiles a TY program guide that subscribers can use to record TV shows. (Once a program has been recorded, subscribers are able to fast forward ads in 30 second blocks.) The Nine Network believes that Ice TV has breached its copyright by creating a TV program guide that looks like its own. Accordingly, Nine has sued Ice TV for copyright infringement and is seeking a permanent injunction and unspecified damages."
To the surprise of most legal commentators IceTV actually won at first instance but it seems that the federal court has overturned that decision on appeal; and the case is to be sent back to the original judge to reconsider her opinion. A quick scan of the opinion indicates the court felt that the judge at first instance had misinterpreted some technicalities in the application of the facts to the law; but splitting hairs on the interpretations of providing intellectual property protection to compilations of facts just ignores the elephant in the room - why is copyright protection being allocated to compiliations of facts in the first place?

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