In a landmark copyright case,1 the High Court
unanimously held that IceTV did not infringe copyright by
reproducing individual items of time and title information from
Nine Network's weekly television schedules. The decision
signals a shift away from the "sweat of the brow"
protection previously afforded to data compilations in Australia,
reinforcing that copyright protects expression of information and
not the information itself.
IceTV was using time and title information from Nine
Network's weekly broadcasting schedules to assist in producing
an electronic programme guide for use on digital televisions, known
as the "IceGuide". IceTV took independent steps to
compile the initial information to be included in the IceGuide, but
used Nine's time and title information to cross-check its final
guide for accuracy and, if necessary, amend the IceGuide.
For the purposes of the proceedings, IceTV accepted that
copyright subsisted in Nine's weekly broadcasting schedules.
However, the question for determination by the High Court was
whether the time and title information that was reproduced in the
IceGuide constituted a "substantial part" of these
The High Court decision
The High Court undertook a qualitative assessment of the
information reproduced. The High Court found that the time and
title information taken by IceTV was not a "substantial
part" of Nine's original compilation as the part taken
lacked the originality of expression required to constitute a
Whilst previous Full Federal Court authority in Desktop
Marketing2 had suggested that copyright would
subsist to protect the "sweat, skill and effort" in
compiling information in a particular arrangement (in that case,
telephone directories), here, the High Court rejected that there
was any skill and labour directed at the particular form of
expression of the part reproduced by IceTV. In this case, the
arrangement of programme time and title information reproduced by
IceTV could be arranged in no other way than chronologically.
Therefore, any "skill and effort" that Nine had employed
in creating its weekly broadcasting schedules was not in the time
and title information taken by IceTV. Accordingly, IceTV did not
Although the High Court did not directly overturn the principles
found in Desktop Marketing, it did allude that an emphasis
on the mere "labour and expense" involved in compiling
information may be an out of date consideration and that focus must
be placed on originality in the form of expression. This reinforces
trite principles that Australian copyright law only protects
expression and arrangement of information, not the information
Implications for copyright and database creators and users
The impact of the decision is to potentially lessen the
protection previously thought afforded to data compilations such as
business directories, schedules and timetables. It appears that
information in such data compilations may not be protected from
reproduction merely because significant "sweat, skill and
effort" had been employed in creating the database. Instead,
consideration will need to be given as to whether any
"creative spark" or "original thought" has been
employed in the arrangement and expression of the particular
compilation. This parallels the position in the US where copyright
protection has not traditionally been afforded for mere
"industrious collection", but requires some element of
"creativity" in the selection and arrangement of
However, whilst the decision might be hailed as an open door for
copyright users to repackage database information, ultimately,
whether such activity constitutes copyright infringement will
require careful analysis of the type of database in issue, the
processes involved in compiling and arranging it and the precise
"taking" in question. Accordingly, whether particular
data or information in a compilation or schedule may be freely used
and reproduced without infringement will nevertheless remain to be
assessed on its own facts.
1 IceTV Pty Ltd v Nine Network Australia Pty Ltd
 HCA 14 (22 April 2009)
2 Desktop Marketing Systems Pty Ltd v Telstra
Corporation (2002) 119 FCR 491 (Desktop
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