Australia: Australia - Copyright In Databases/Compilations – The Ice Case – Is Any Use Of Information In A Database Subject To Copyright Permitted?

Last Updated: 17 September 2008
Article by Ashleigh Fehrenbach


In May 2008, the Full Federal Court of Australia upheld an appeal by Nine Network Australia Pty Limited ("Nine"), finding that Ice Pty Limited ("Ice") had infringed the copyright in Nine's television program schedules. The Full Federal Court held that Ice infringed Nine's compilation copyright by substantially reproducing Nine's program titles and times in Ice's subscription-based electronic program guide ("EPG") for television.

This decision has ramifications for persons seeking to use information that is contained in a compilation, including a schedule or timetable, in which another party holds the copyright. In particular, a number of significant issues arise following the decision of the Full Federal Court, including:

  • finding that Ice indirectly copied Nine's program titles and times has given rise to arguments that the decision extends copyright protection in a compilation to include the underlying information contained in the compilation. This is contrary to the decision in the Desktop Marketing Systems Pty Ltd v Telstra Corp Ltd1 where the Court in that case affirmed that it is open to a person to ascertain the facts recorded in a compilation by making independent inquiries and for that person to make their own compilation using the results of the inquiries;
  • indicating that small quantities of information taken from a compilation work may be considered a 'substantial part' of the work for the purpose of determining whether infringement has occurred;
  • having the effect that a person may be liable for copyright infringement even where they have used skill and creativity in producing a new work, if they incorporate a substantial part of another's compilation work; and
  • requiring consideration to be given to obtaining a licence from the copyright holder to permit use of compilation information before any use occurs which could constitute a copyright infringement.

This decision is relevant to the treatment of copyright infringement in databases under Australian law - different rules may apply in other jurisdictions (i.e. the UK) where rights in a database may not be capable of protection under copyright law.


Ice provided a subscription-based, interactive EPG called "IceGuide", which allowed its customers to view television program schedules on a television screen or computer. IceGuide could be used to record free-to-air television programs with certain program recording devices. In order to receive IceGuide, subscribers had to connect their program recording device to the Internet. IceGuide data was held by Ice in a database. A program recording device could then be programmed to connect to the database and collect and download the latest version of IceGuide for a 6-8 day period.

Ice prepared the IceGuides by obtaining information relating to the time and titles of television programs from "aggregated guides". The aggregated guides are prepared by "aggregators", who compile television programming data supplied by different television broadcasters, including Nine, under licence.

In May 2006, Nine commenced proceedings against Ice for copyright infringement, claiming that Ice had infringed Nine's copyright in their weekly television programme schedules ("Weekly Schedules"). Nine's case was that Ice had copied time and title information from the aggregated guides, and thus indirectly copied Nine's copyright work.

Nine argued that it had applied considerable skill and labour in making programming decisions, which were documented in the Weekly Schedules. In selecting and arranging programs, Nine considered numerous factors such as likely size and demographic composition of audiences, programming decisions of competitors, advertising revenue, and the availability of broadcast rights. As a result, the skill and labour expended by Nine in balancing these considerations gave the Weekly Schedules the character of original literary works. By reproducing the Weekly Schedules in the IceGuide, Nine claimed that Ice was appropriating a 'substantial part' of Nine's original literary work.


Section 32 of the Copyright Act 1968 (Cth) ("Act") provides that copyright subsists in, inter alia, published and unpublished original literary works. Under section 10 of the Act, a "literary work" can include a "table, or compilation, expressed in words, figures or symbols." In accordance with section 31, copyright is the exclusive right to reproduce the work in a material form, to publish the work, and to communicate the work to the public.

Under section 36, copyright is infringed in respect of a literary work by "a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorises the doing in Australia of, any act comprised in the copyright." Pursuant to section 14 of the Act, copyright is infringed under section 36 if such an act is done in respect to a "substantial part" of a work.


It was not in dispute that Nine had copyright in Weekly Schedules. Rather, the issue considered by the Court was whether Ice had infringed Nine's copyright in the Weekly Schedules by indirectly copying the program times and titles from the aggregated guides.

At first instance, Bennett J, rejected the claim of copyright infringement by Nine. Her Honour held that, although copyright did subsist in the Weekly Schedules as compilations, Nine had not established that Ice reproduced a substantial part of Nine's copyright works.

In reaching her decision, her Honour found that Nine could not claim copyright infringement in the individual program time and title details, as copyright subsists in a Weekly Schedule compilation as a whole work. Thus, Nine could not claim copyright in the components of the Weekly Schedule as if they were separate compilations.

Her Honour also found that Nine's skill and labour had not been primarily expended for the purpose of creating a literary work. Rather, Nine's skill and labour was chiefly utilised in respect of selecting programs to maximise television audiences, which was merely 'preparatory' to tabulating the Weekly Schedules. Thus, there was not "a relevant appropriation of that skill and labour by Ice in composing the IceGuide"2.

Further, her Honour found that Ice had adopted its own format and content, and utilised its own skill and labour in arranging the television program information in the IceGuide. Her Honour did not consider that, by taking excerpts of time and title information and incorporating them into their own guide, Ice had reproduced a 'substantial part' of Nine's copyright work.

Her Honour also confirmed that a 'substantial part' should be decided according to the quality of the work reproduced and the protection of the relevant skill and labour, rather than the quantity. Ice had "not take(n) sufficient of the skill and labour of the content of the Aggregated Guides, let alone the Weekly Schedule, to constitute a substantial part".3

Appeal to the Full Federal Court

On appeal, the Full Federal Court held that the trial judge had erred by distinguishing between the skill and labour in selecting program times, and the skill and labour in tabulating the results. The skill and labour expended by Nine were part of a single, continuous process culminating in the creation of the copyright work as the "written record of Nine's programming decisions and associated program information".4

Contrary to Bennett J's findings, the Court held that Nine's creation of the Weekly Schedules was "a central element of its (Nine's) 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".5

In respect of whether a substantial part of Nine's Weekly Schedules had been reproduced, the Court found that even a small quantity of information could constitute a 'substantial part' of the copyright work. Ice's reproduction of time and title information involved more than a slight or immaterial portion of Nine's copyright work in terms of quantity. Further, the Court was of the opinion that, where small quantities are systematically taken on a regular basis, as in this case, it would be particularly willing to make a finding of copyright infringement.

Accordingly, the Court held that the time and title information used by Ice in the IceGuide constituted a substantial part of Nine's compilation copyright work on the basis that the information was a "crucial element"6 of the work, and the outcome of considerable skill and labour expended by Nine.

The fact that Ice also exerted skill and labour in producing its own original work was considered irrelevant in assessing whether Nine's copyright work was substantially incorporated. A substantial reproduction of Nine's copyright work was not justified despite any element of originality.

The Court therefore found that Ice had indirectly copied a substantial part of Nine's copyright work, and ordered Ice to pay Nine's costs of the appeal. The matter was remitted to the primary judge to determine the form of relief to which Nine was entitled. On 27 July 2008, Her Honour ordered that:

  • Ice be permanently restrained from reproducing or communicating to the public the whole or substantial part of Nine's television program schedules, including the time and title information; and
  • Ice delete Nine's time and title information from the EPG from 1 December 2005 until the date of the order.

What's Next?

On 4 June 2008, Ice lodged an application for special leave to appeal to the High Court of Australia. On 26 August 2008, the High Court granted Ice special leave to appeal the decision of the Full Federal Court.

Ice relies on a number of grounds of appeal, including that the Full Federal Court erred in characterising the case as one of indirect copying and finding that the requisite causal connection existed between the Weekly Schedules and the Iceguide.

It remains to be seen whether the High Court will accept the arguments submitted by Ice. If the High Court dismisses the appeal and finds in favour of Nine, there will be significant implications for copyright law in Australia. In particular, it will greatly limit the ability of information providers to obtain and use information that is contained in a compilation in which the copyright is held by another person.


1 (2002) 119 FCR 491

2 Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172 (9 August 2007) at 193 per Bennett J.

3 [2007] FCA 1172 (9 August 2007) at 210 per Bennett J.

4 Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71 (8 May 2008), 111 per Black CJ, Lindgren and Sackville JJ.

5 supra at 104 per Black CJ, Lindgren and Sackville JJ.

6 supra at 109 per Black CJ, Lindgren and Sackville JJ.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.