In a decision with important implications for compilations of
information, such as databases, the High Court today held that an
electronic program guide, which reproduced program titles and
broadcast times from programming schedules created by TV networks
did not infringe copyright (IceTV Pty Limited v Nine Network
Australia Pty Limited  HCA 14).
How Are The Two Guides Produced?
Programmers at Channel Nine prepare the schedules a few weeks in
advance. For each timeslot, they insert the following information:
broadcast time; program and episode titles; the currency of the
program (is it live? a repeat?); classification; and a synopsis.
IceTV conceded that copyright subsisted in Channel Nine's
schedules and consequently the question of subsistence was not
This is then sent to aggregators who put it with information
from other TV channels to make up TV guides.
IceTV produced an electronic program guide that worked with any
personal video recorder device or media centre that is connected to
the internet. Users would access the guide and then select programs
from it; this would then tell the recorder to record the programs.
Ice TV's content manager sat in front of a TV for three weeks
to get basic information about TV schedules. This could be done
because certain aspects of the broadcast schedules remain constant
- for example, Channel Nine's News is always at 6 pm,
followed by A Current Affair. The template would include that
unchanging information. The variable information would be obtained
from the TV guides produced by the aggregators. Importantly, IceTV
only copied the time and title information. IceTV would draft its
own synopses of the programs.
The critical issue was whether the reproduction of the titles
and times was an infringement of Channel Nine's copyright in
Why Wasn't This Infringement?
The High Court went back to one of the bases of copyright law:
namely that copyright is to protect the expression of ideas, not
the ideas themselves. While the skill and labour used to create the
work are important when considering infringement, the focus must be
directed to the originality of the particular form of
Here, Channel Nine put together the titles of television
programs and the times they would be shown. These are basic facts.
There is no originality in the way these facts have been expressed
as they were merely presented in chronological order.
Channel Nine established that skill and labour was used in
making programming decisions, such as what program was to be
broadcast in a particular time slot. However, this skill and labour
was not directed to the particular form of the time and title
information that IceTV reproduced. Consequently it had no bearing
on whether the information was original or a substantial part
Channel Nine's copyright works.
Why Is This Important?
More and more information is captured and stored in databases
and other compilations. This decision is important because it
suggests that the courts might be retreating from the position held
or assumed in previous cases, most notably Desktop Marketing
Systems Pty Ltd v Telstra Corporation Ltd  FCAFC 112,
which focused on the skill and labour used simply to create the
compilation and the interests of the creator and copier.
Instead, the High Court has reasserted the importance of
expression in copyright law, at least in the context of
infringement. It has also suggested, without deciding, that some
databases might not even meet the basic requirements for copyright
protection, particularly that of authorship.
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.
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