ICETV v Nine

For a more sensible perspective on copyright look to the Icetv decision in the High Court of Australia earlier in the week. Copyright anoraks may remember that the broadcaster, Nine, had won in the appeal court in this dispute over copyright in TV schedules. Warwick Rothie has an interesting analysis.

"IceTV publishes an electronic tv program guide or schedule. The ABC and SBS provide their program schedules, but the commercial free-to-air networks refused. Mr Rilet sat down and watched 3 weeks of Channel 9 programming, writing down the time and title of each program. He then made up a program schedule ‘predicting over’ what would be broadcast. As the broadcast date neared, however, IceTV employees checked up to 3 other program guides and made corrections to the ‘predicted over’ guide as appropriate. (A summary of the changes made to 2 particular days can be found at [179 - 181] of Gummow, Hayne and Heydon JJ’s reasons.) Mr Rilet and IceTV presumably engaged in the same kind of work for the other commercial networks.

The High Court unanimously held that IceTV’s use of time and title information (’slivers’ in Bennett J’s evocative phrase at first instance) did not reproduce a substantial part of Nine’s copyright in [one or other programming schedule]. (It is necessary to be a bit vague here since, as in Feist, the alleged infringer mistakenly (as it now turns out) conceded copyright subsistence in something, to the evident frustration of all High Court judges.)

One thing the Court was unanimously agreed upon is that “copyright does not protect facts or information”, it protects forms of expression. See e.g. [28] per French CJ, Crennan and Kiefel JJ and [70] and [102] per Gummow, Hayne, Heydon JJ...

The judgments both bear strong indications that Australian copyright law should change track and follow the line pursued by the US Supreme Court in Feist.

Both judgments appear to affirm that copyright involves a balancing of the competing interests of creators (and owners) and users or the public.

The fun, or future controversies, begin in what follows.

For French CJ, Crennan and Kiefel JJ, there appears to be a different approach according to whether one is considering questions of originality and substantiality in connection with subsistence of copyright or in connection with infringement.

French CJ, Crennan and Kiefel JJ appear to consider that copyright will subsist so long as what is expressed (in a material form) originates from the author in the sense of not being copied from somewhere else. See [33] and [48].

Their Honours accepted that infringement fell to be tested by ascertaining whether or not the time and title information in IceTV’s guides was a substantial part of the relevant Nine program guide. This required consideration of “the degree of originality of the particular form of expression of the part [taken].” at [52]

Just because the part taken originated from the author did not necessarily make that part a substantial part of the original copyright work - “[o]riginality in the context of infringement has a broader aspect.” at [38].

The time and title information reproduced by IceTV did not require much in the way of mental effort at [42]. Its chronological arrangement was obvious and prosaic at [43].

According to their Honours at [54]:

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[83]. 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."

It's a thoughtful decision and bears some study, the time for which is sadly unavailable to me today. Thanks to Neil Dunbar for the alert.