Next time you get frustrated at your partner or flatmate for
incessant channel surfing, pause. Appreciate that the on-going
decision between NCIS or Ramsay's Kitchen Nightmares is
so hard because competitive broadcasters have done a good job
scheduling programs to entice viewers.
Pause a little longer, and reflect on the Full Federal
Court's recent decision in Nine Network v
IceTV. The case reminds us that the investment of skill
and labour in creating programming schedules means that they
are protected by copyright which is easy to infringe, even
Nine Network Australia v IceTV
Nine Network's weekly schedules are licensed to
"aggregators" who combine information from a range of
broadcasters to produce aggregate guides. These guides are then
published in print (e.g. TV Week) or online.
IceTV provides a subscription-based electronic TV program
guide, "IceGuide", allowing subscribers to
view a custom TV program schedule on the screen of their TV set
or computer. The time slots and episode titles were taken from
the aggregate guides.
In creating the IceGuide Nine alleged that IceTV had
infringed copyright in Nine's weekly schedules. The
Court agreed after considering the following questions.
did IceTV reproduce a substantial part of the Nine weekly
was there was a causal link between the time and title
information in IceGuide and the Nine weekly schedules?
The Court held that time and title information contained in
the Nine weekly schedules was crucial information to viewers
and reflected significant skill, labour and effort.
Accordingly, on the assumption that a causal connection
existed, the use by IceTV of the time and title information
(albeit indirectly derived from a secondary source) involved
the reproduction of more than a slight or immaterial proportion
of Nine's copyright work.
Because the information in the aggregate guides was in
'wholly different form' IceTV suggested that
there was no relevant connection between the IceGuide and the
Nine weekly schedules. The Court disagreed.
Despite the significant difference in look and feel between
the schedules and the aggregate guides, the Court held that the
aggregate guides nonetheless reproduced (with permission) all
of Nine's time and title information.
So, on reflection, as you're about to make a
final decision about what to watch...
... remember that the Nine Network case confirms the current
qualitative test to be applied when deciding copyright
infringement cases and the risks involved when indirectly using
'bits and pieces' of copyright material, even
from a secondary source.
What it may also confirm is, that maybe, just maybe,
watching soapies and reality shows is, on a much deeper level,
more educational than we think.
The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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