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The High Court has unanimously allowed the appeal in IceTV. IceTV did not reproduce a substantial part of Nine's copyright in its program guides by reproducing the time and title information from those guides. At least that means people in Australia will be able to use PVRs without the shackles imposed by the TV networks. IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14 (lid dip Joshua Gans via Twitter) More detailed consideration will require further time. Meanwhile, 2 points to ponder: First, French CJ, Crennan and Kiefel JJ delivered one joint opinion. Gummow, Hayne and Heydon JJ delivered a second joint opinion. Secondly, in their joint opinion, Gummow, Hayne and Heydon JJ trail a very long coat on the Feist-ian "spark of creativity":

187.   One final point should be made. This concerns the submission by the Digital Alliance that this Court consider the Full Court's decision in Desktop Marketing[196] and, to the contrary of Desktop Marketing, affirm that there must be "creative spark"[197] or exercise of "skill and judgment"[198] before a work is sufficiently "original" for the subsistence of copyright.

188.  It is by no means apparent that the law even before the 1911 Act was to any different effect to that for which the Digital Alliance contends. It may be that the reasoning in Desktop Marketing with respect to compilations is out of line with the understanding of copyright law over many years. These reasons explain the need to treat with some caution the emphasis in Desktop Marketing upon "labour and expense" per se and upon misappropriation. However, in the light of the admission of Ice that the Weekly Schedule was an original literary work, this is not an appropriate occasion to take any further the subject of originality in copyright works. 

(emphasis supplied)

That might come as a surprise to someone who read the transcript of Desktop's failed special leave application.

Tags: compilation, IceTV, originality, program guides, reproduction, substantial part, table

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