Ice TV Pty Ltd –v– Nine Network
Australia Pty Ltd (High Court of Australia, 22 April
Following the High Court decision in Ice TV
–v– Nine Network Australia last week,
there is a strong argument that some telephone directories, train
timetables, football fixtures, television program schedules and
other similar compilations of factual information are not protected
by copyright, or that there is far less scope for protection of
such compilations than previously accepted.
It has always been the case that copyright does not protect mere
factual information. However, before the decision in Ice TV
–v– Nine Network Australia, it was widely
considered that there was copyright in compilations of factual
information if significant effort was expended in the collection or
preparation of that information. But the High Court decision
suggests that may not be the case.
The case concerned copying by Ice TV of some of the names and
times of television programs from Nine Network's weekly
television program schedule.
All six judges found there was no copyright infringement by Ice
TV. The reason for this according to three of the judges was that
there was not sufficient originality in the way in which the names
and times of the television programs in Nine Network's
television program schedule was expressed. That is, the way in
which that information can practically be expressed, by a
chronological listing of the program names and the start time for
each program, is very limited. The significant effort which Nine
Network expended in selecting programs and determining program
times was not relevant.
The same issue arises in relation to telephone directories,
football fixtures and train timetables. For example, consider a
telephone directory. The names, phone numbers and addresses in the
directory are all factual information, and facts themselves are not
protected by copyright. But is there copyright in the way in which
that information is expressed? As with television program
schedules, the way in which such a telephone directory can
practically be expressed, by alphabetical listing of names with a
telephone number and address for each name, is very limited. The
effort expended in collecting the names, phone numbers and
addresses is probably not relevant. Therefore, following the
decision in Ice TV –v– Nine Network
Australia, there is a strong argument that there is no
copyright in such a telephone directory, or that the scope for
protection is very limited.
We do not yet have absolute certainty about these issues. The
High Court only considered the issue of infringement and not
whether there was copyright in Nine Network's television
program schedule, but there is undoubtedly a close relationship
between those issues. Also, in some cases, whether there is
infringement may still depend on the extent of copying. So, the
question of whether there is copyright in any particular
compilation of facts and the scope of copyright protection, must
still be considered on a case by case basis. But the High Court
decision indicates that it will be far more difficult in the future
to establish copyright protection in compilations of facts, such as
telephone directories, train timetables, football fixtures and
television program schedules.
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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