Australia: 10 Out Of 10 For Channel 9

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 indirectly.

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 schedules?

• was there was a causal link between the time and title information in IceGuide and the Nine weekly schedules?

Substantial copy

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.

Causation

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.

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