The recent Federal Court decision of Nine Network Australia Pty Ltd v IceTV Pty Ltd  FCA 1172 confirms that copyright can subsist in compilations of data (for example databases) but does not subsist in the individual pieces of data that make up the compilation. In managing Intellectual Property (IP), agencies should:
Consider any copyright that might exist in compilations of data.
Ensure that their IP policy deals with copyright in compilations of data.
Nine Network Australia Pty Ltd (Nine) argued that IceTV had infringed copyright in its ‘Weekly Schedules’, which set out Nine’s programming for each week including the day, time and title of each program, and synopses and additional program information for some programs. The Weekly Schedules are given to various publishers who, with the permission of Nine, publish television guides containing, in part, Nine’s programming information (the Authorised Guides).
IceTV’s television guide (the IceGuide) contains programming information for several stations, including Nine. To obtain the initial data for the IceGuide, IceTV personnel spent three weeks watching television and recorded the details of every program screened, including the title, channel, day and time of the broadcast (it did not copy data from the Weekly Schedules or the Authorised Guides). This initial data was then entered into IceTV’s database and formed the basis of the IceGuide.
Each week IceTV checks the initial data against the day, time and title information contained in the Authorised Guides and makes any necessary updates. Consequently, the IceGuide contains day, time and title information that is virtually the same as the Authorised Guides, but synopses and additional information that is different to the Authorised Guides.
Subsistence of copyright
The Federal Court held that copyright subsisted in the Weekly Schedules prepared by Nine because they were a product of Nine’s skill and labour in gathering the material for inclusion in the schedule and arranging that material in a unique way. However, each piece of information on its own was not entitled to copyright protection.
Infringement of copyright
Nine’s claim of copyright infringement failed because:
Copyright does not prohibit the independent creation of a substantially similar or identical work, provided there is no actual reproduction or copying of the original work by any means. IceTV had made independent inquiries when obtaining the initial data for the IceGuide and merely took a few ‘slivers’ of information from the Authorised Guides to update the IceGuide each week.
The format of the IceGuide was different to the format of the Weekly Schedules.
The synopses and additional information in the IceGuide were independently researched and drafted.
Implications of the decision
The implications of the decision are that:
Copyright can subsist in compilations of data such as databases (copyright protects the particular manner in which the data is arranged).
Copyright does not subsist in the individual pieces of data that make up the compilation.
Most agencies have significant compilations of data. This decision highlights the need for agencies to consider copyright in compilations of data as part of their broader IP management regime. Effective management of copyright in compilations of data involves a range of processes, including:
Identifying compilations of data in which copyright subsists (agency and third party).
Valuing and recording copyright in compilations of data.
Enforcing agency copyright that subsists in compilations of data.
An agency’s IP policy should deal with the management of copyright in compilations of data (particularly databases) including the processes listed above.
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