After waging a three year battle which ended up in the High
Court of Australia, Nine has been left out in the cold in relation
to what it thought was its intellectual property.
Nine lost its case against IceTV, claiming IceTV took the time
and title information in Nine's weekly programming schedules
and improperly used it in its subscription-based electronic
programme guide, IceGuide. With this decision the High Court
has limited copyright protection afforded to compilers and
publishers of factual compilations. Copyright, the Court
said, protects the form or expression of factual information and
not the factual information itself. It's the quality and
not the quantity that matters.
Ice, Ice baby ... IceTV Is Back With A Brand New Invention
IceGuide, when downloaded, displays details of television shows
scheduled to be broadcast by free-to-air television stations for a
one week period. When used with a digital video recorder, the
IceGuide allows viewers to record television shows and skip
through, or fast-forward, the television commercials.
Nine broadcasts television shows for our viewing pleasure.
To help us know when our favourite shows are on TV, Nine compiles a
weekly schedule of the shows it will broadcast. Nine's
weekly schedule contains details of the time and title of the shows
to be broadcast.
Nine's weekly schedule is then provided to
Aggregators. The Aggregators compile an Aggregated Guide
which also includes the weekly schedule of all the free-to-air
television networks. The Aggregated Guides are then
distributed to media, such as newspapers, so that viewers can be
sure they get home in time to watch their favourite show -
In preparing the IceGuide, IceTV's uses information they
have compiled from the previous week's IceGuide as well as
information in the Aggregated Guides. Where there is a
discrepancy as to the time and title information of a television
show, the IceGuide is changed to match the Aggregated Guides.
If There Is A Problem, I'll Solve It
In 2006, Nine sued IceTV for breach of copyright. Nine
argued that because they compiled the weekly schedules, they owned
them and had copyright in them. Initially, Nine lost, but
then won on appeal to the Full Federal Court. IceTV then
appealed to the High Court.
The High Court decided that the taking of the time and title
information from Nine's weekly schedule did not breach
In order for IceTV to have breached Nine's copyright in the
weekly schedules, Nine would have to show that IceTV had taken a
'substantial' part of the weekly schedule and used it in
the IceGuide. This idea of 'substantiality' depends
upon the quality and not quantity of the part of the weekly
schedule that was taken by IceTV.
In assessing the quality of the weekly schedules, the Court
looked to the degree of originality or creativity that went into
creating them. Originality, in this case, the Court held,
could only be measured against the 'skill and labour'
expended by Nine's employees in compiling the weekly
The Court said that while the form of Nine's weekly
schedules was original, the information contained in them was
not. As IceTV had not reproduced the form of the weekly
schedules, only the facts, IceTV was held not to have infringed
For Ice TV, the decision means that it can continue to provide
the IceGuide to its subscribers without permission from Nine.
For viewers and subscribers, it means the IceGuide can be used
to check when favourite shows are playing, record them and even
fast-forward (well, let's be honest, skip) the pesky ads.
And for those who compile and publish compilations of factual
material, the Court's decision means compilers and publishers
of factual compilations may be more at risk of the compilation
being used without their permission. Courts will, of course,
look at each claim of infringement of copyright on a case-by-case
basis, but this case shows that compilers and publishers will need
to show a high degree of skill and labour in the preparation of
factual compilation in order to be afforded copyright
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