IceTV did infringe after all ...

IceTV, you'll remember, (used to) publishes electronic programming guides for tv schedules.  In very broad terms, it generated them by the painful process of sitting down and watching tv for 3 weeks to create a ruough schedule; predicting future programming on the basis of that and adding in corrections and additional information from other sources.

As a result, it took the time and title of Nine's programming schedule.  Some of it copied from aggregated program schedules (such as the Green Guide), some of it "guessed" from watching tv.

While the trial judge found that copyright subsisted in Nine's program schedules, her Honour also found that IceTV had not taken a substantial part.  The Full Court (Black CJ, Lindgren and Sackville JJ - whom you'll remember constituted the Court for the purposes of the Desktop Marketing appeal) reversed ....

The Court explained that Desktop was a different case because (1) it was a whole of universe case - everyone except silent numbers was included (but, of course, that was not true of the Yellow Pages) and (2) the arrangement in alphabetical order was inevitable.  Thus:

90 The Court concluded that, as a matter of authority and policy, the concept of originality in copyright should be understood as embracing a compilation that is the product of substantial labour and expense, provided it is not merely copied from other works: at 532 [160], per Lindgren J; 597 [423], per Sackville J. For that reason, Telstra was held to have established copyright in its directories. However, the Court emphasised that it was the collection in respect of which copyright existed, not the facts collected by the compiler: at 598 [425], per Sackville J.

This case was different.  There were no "pre-existing facts" to compile and there were options for arranging the information.  The Court identified 3 reasons advanced by her Honour as to why IceTV did not infringe:

95  .... However, when the judgment is read as a whole, it can be seen that she gave three reasons for concluding that Ice, insofar as it had indirectly copied Nine’s time and title information, had not appropriated the skill and labour that Nine had utilised to create the Weekly Schedules and thus had not reproduced a substantial part of Nine’s copyright work. The first reason was that the skill and labour in selecting and arranging the programs on Nine was ‘antecedent’ or ‘preparatory’ to the exercise of skill and labour in preparing the Weekly Schedules. The second was that Nine’s main purpose in deciding which programs to broadcast and when to broadcast them was not to create a literary work, but to decide upon its programming schedule. The third was that Nine had failed to establish that the time and title information in the Weekly Schedules was ‘qualitatively more important than the synopses’. The first two reasons are related.

Bearing in mind that each case depends on its own facts, the first reason did not survive the Time Out case or Littlewood Pools or Ladbroke v William Hill (or, one might add Milwell v Olympic).

104 Viewed more broadly, the creation by Nine of a compilation based on its programming (time and title) decisions, was a central element of its business as a television broadcaster for the reason that the compilation was an essential step in informing its potential viewing public of what it had on offer. Within the competitive environment of television broadcasting it can be assumed that Nine had no business option but to create the compilation. However attractive its programs and their scheduling might be, they would be of very limited value if viewers had no programme guide and had to chance upon the programs that they wanted to see.

The third reason advanced by her Honour did not survive the old what is worth copying is worth protecting rule of thumb - or at least "way of the copier should not be made easier" variant.

Then, the Full Court concluded at [113] that taking the time and titles of the programming was "more than a slight or immaterial portion of Nine's copyright work because:

109 The time and title information incorporated by Nine in its Weekly Schedules was a crucial element of the compilation, and was plainly of particular interest to potential viewers. The Weekly Schedules were the compilations by which Nine recorded its programming decisions, both for its own purposes and for the purposes of dissemination to Aggregators and, through them, to the potential viewing audience. While there were other elements of the Weekly Schedules that doubtless were also of interest for internal and external audiences, such as the synopses and the so-called additional information, it was the time and title information that formed the centrepiece of the Weekly Schedules. Everything else in the compilation was subsidiary to that information.

115 When the quality of the material taken by Ice is considered, the substantiality of the part taken becomes even clearer. Ice took, via the Aggregated Guides, precisely the pieces of information that reflected the exercise of skill and labour by Nine in determining the program for a particular day or other period. It presumably takes a modest degree of skill and judgment to keep a particular program in the same timeslot each day or week, month after month. It takes much more skill and judgment to structure a complete programming schedule for a given period. Ice’s use of material derived from the time and title information – we would not use the expression ‘slivers of information’ – appropriated the most creative elements of the skill and labour utilised by Nine in creating the Weekly Schedules.

The Court found IceTV's argument that the arrangement of its guides was different more troubling.  In the end, however, it was able to overcome this by pointing out that a user of IceTV's guide could manipulate it in various way including one which displayed just Nine programming in a format similar to that used in Nine's copyright work.

The Full Court had little trouble dismissing IceTV's argument that it had not indirectly copied from Nine's copyright work.  Ultimately, all sources of information about the programming derived directly or indirectly from Nine's copyright work.

Kim Weatherall has a detailed review; and catalogues some of the end of the world doomsayers here and here.  

If "we" really want to fix this, however, we will have to go the UK route and introduce a statutory licence unless, of course, IceTV can persuade the ACCC to emulate the EU Commission's Magill strategy; not a solution that would make much sense.

Posted: Sunday - 18 May, 2008 at 10:41 AM         |

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